Exhibit 1.1
Execution Version
Athene Holding Ltd.
4.125%
Senior Notes due 2028
Underwriting Agreement
January 9, 2018
B
ARCLAYS
C
APITAL
I
NC
.
G
OLDMAN
S
ACHS
& C
O
. LLC
W
ELLS
F
ARGO
S
ECURITIES
, LLC
As Representatives of the several
Underwriters
named in Schedule I attached hereto,
c/o Barclays Capital Inc.
745 Seventh Avenue
New York, New York 10019
c/o Goldman Sachs & Co. LLC
200 West Street
New York, New York 10282
c/o Wells Fargo Securities, LLC
550 South Tryon Street
5th Floor
Charlotte, North Carolina 28202
Ladies and Gentlemen:
Athene Holding Ltd., an exempted company organized under the laws of Bermuda (the “Company”), proposes, upon the terms and conditions
set forth in this agreement (this “Agreement”), to issue and sell to Barclays Capital Inc., Goldman Sachs & Co. LLC, Wells Fargo Securities, LLC and the other several underwriters named in Schedule I hereto (the
“Underwriters”), for whom Barclays Capital Inc., Goldman Sachs & Co. LLC and Wells Fargo Securities, LLC are acting as representatives (in such capacity, the “Representatives”), $1,000,000,000 in aggregate principal
amount of its 4.125% Senior Notes due 2028 (the “Notes”). The Notes will have terms and provisions that are summarized in the Pricing Disclosure Package and Prospectus (each as defined below). The Notes are to be issued pursuant to an
Indenture, dated January 12, 2018 (the “Base Indenture”), as supplemented by the First Supplemental Indenture, dated January 12, 2018 (the “Supplemental Indenture”; the Base Indenture, as supplemented by the
Supplemental Indenture, the “Indenture”), both to be entered into between the Company and U.S. Bank National Association, as trustee (the “Trustee”). This Agreement is to confirm the agreement concerning the purchase of the Notes
from the Company by the Underwriters.
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1.
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(a) The Company represents and warrants to, and agrees with, each of the Underwriters that:
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i. A registration statement on Form
S-3
(File
No. 333-222392)
relating to the Notes (among other securities) has (i) been prepared by the Company in conformity with the requirements of the Securities Act of 1933, as amended (the “Securities
Act”), and the rules and regulations of the Securities and Exchange Commission (the “Commission”) thereunder; (ii) been filed with the Commission under the Securities Act; and (iii) become effective under the Securities Act.
Copies of such registration statement and any amendment thereto have been delivered by the Company to the Representatives. As used in this Agreement:
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a.
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“Applicable Time” means 4:45 p.m. (New York City time) on January 9, 2018;
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b.
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“Effective Date” means the date and time at which such registration statement became, or is deemed to have become, effective in accordance with the rules and regulations under the Securities Act;
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c.
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“Issuer Free Writing Prospectus” means each “issuer free writing prospectus” (as defined in Rule 433 under the Securities Act) relating to the Notes;
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d.
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“Preliminary Prospectus” means any preliminary prospectus relating to the Notes included in such registration statement or filed with the Commission pursuant to Rule 424(b) under the Securities Act, including
any preliminary prospectus supplement thereto relating to the Notes;
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e.
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“Pricing Disclosure Package” means, as of the Applicable Time, the most recent Preliminary Prospectus, together with each Issuer Free Writing Prospectus filed or used by the Company at or before the Applicable
Time, other than a road show that is an Issuer Free Writing Prospectus but is not required to be filed under Rule 433 under the Securities Act;
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f.
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“Prospectus” means the final prospectus relating to the Notes, including any prospectus supplement thereto relating to the Notes, as filed with the Commission pursuant to Rule 424(b) under the Securities Act;
and
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g.
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“Registration Statement” means such registration statement, as amended as of the Effective Date, including any Preliminary Prospectus or the Prospectus, all exhibits to such registration statement and
including the information deemed by virtue of Rule 430B under the Securities Act to be part of such registration statement as of the Effective Date.
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Any reference to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents
incorporated by reference therein pursuant to Form
S-3
under the Securities Act as of the date of such Preliminary Prospectus or the Prospectus, as the case may be. Any reference to the “most recent
Preliminary Prospectus” shall be deemed to refer to the latest Preliminary Prospectus included in the Registration Statement or filed pursuant to Rule 424(b) under the Securities Act prior to or on the date hereof. Any reference to any
amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), after the date of such
Preliminary Prospectus or the Prospectus, as the case may be, and before the date of such amendment or supplement and incorporated by reference in such Preliminary Prospectus or the Prospectus, as the case may be; and any reference to any amendment
to the Registration Statement shall be deemed to
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include any document filed with the Commission pursuant to Section 13(a), 14 or 15(d) of the Exchange Act after the Effective Date and before the date of such amendment that is incorporated
by reference in the Registration Statement. The Commission has not issued any order preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending the effectiveness of the Registration Statement, and no proceeding or
examination for such purpose has been instituted or threatened by the Commission. The Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
ii. Since the time of initial filing of the Registration Statement, the Company has been, and continues
to be, a “well-known seasoned issuer” (as defined in Rule 405) eligible to use Form
S-3
for the offering of the Notes. Since the time of the initial filing of the Registration Statement, the Company
was not and has not been an “ineligible issuer” (as defined in Rule 405). The Registration Statement is an “automatic shelf registration statement” (as defined in Rule 405) and was filed not earlier than the date that is three
years prior to the Time of Delivery (as defined herein);
iii. The Registration Statement conformed
and will conform in all material respects on the Effective Date and at the Time of Delivery, and any amendment to the Registration Statement filed after the date hereof will conform in all material respects when filed, to the requirements of the
Securities Act and the rules and regulations thereunder. The most recent Preliminary Prospectus conformed, and the Prospectus will conform, in all material respects when filed with the Commission pursuant to Rule 424(b) under the Securities Act and
at the Time of Delivery to the requirements of the Securities Act and the rules and regulations thereunder. The documents incorporated by reference in any Preliminary Prospectus or the Prospectus conformed, and any further documents so incorporated
will conform, when filed with the Commission, when filed with the Commission, in all material respects to the requirements of the Exchange Act or the Securities Act, as applicable, and the rules and regulations of the Commission thereunder;
iv. Neither the Company nor any other person acting on behalf of the Company has sold or issued any
securities that would be integrated with the offering of the Notes contemplated by this Agreement pursuant to the Securities Act, the rules and regulations thereunder or the interpretations thereof by the Commission;
v. The Registration Statement did not, as of the Effective Date, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; provided that no representation or warranty is made as to (1) information contained in or omitted from the
Registration Statement in reliance upon and in conformity with written information furnished to the Company through the Representatives by or on behalf of any Underwriter specifically for inclusion therein or (2) the Statement of Eligibility
under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), of the Trustee. For purposes of this Agreement, the only information furnished to the Company by an Underwriter through the Representatives is the information
in the third sentence in the third paragraph under the heading “Underwriting,” the first and sixth sentences in the tenth paragraph under the heading “Underwriting” and the first sentence in the fifteenth paragraph under the
heading “Underwriting,” in each case contained in the Pricing Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus (the “Underwriter Information”);
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vi. The Prospectus will not, as of its date or as of the
Time of Delivery, contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information;
vii. The Pricing Disclosure Package, as of the Applicable Time, did not include any untrue statement of
a material fact or omit to state any material fact necessary in order to make the statements in the Pricing Disclosure Package, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with the Underwriter Information;
viii. Each Issuer Free Writing Prospectus listed in Schedule III(a) hereto does not conflict with the
information contained in the Registration Statement, the Pricing Disclosure Package or the Prospectus; and each such Issuer Free Writing Prospectus listed in Schedule III(a) hereto, when taken together with the Pricing Disclosure Package, as of the
Applicable Time, did 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; provided
that no representation or warranty is made as to information contained in or omitted from such Issuer Free Writing Prospectus listed in Schedule III(a) hereto in reliance upon and in conformity with Underwriter Information;
ix. The documents incorporated by reference in any Preliminary Prospectus or the Prospectus did not,
and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. No such documents were filed with the Commission since the Commission’s close of business on the business day immediately prior to the date of this Agreement and prior to the
execution of this Agreement, except as set forth on Schedule IV hereto;
x. The financial
statements (including the notes and any supporting schedules thereto) of the Company and its consolidated subsidiaries included or incorporated by reference in the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus comply in
all material respects with the applicable requirements of the Securities Act and present fairly in all material respects the consolidated financial position of the Company as of the dates indicated and the consolidated results of operations and
changes in the consolidated financial position of the Company for the periods specified; any such financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“U.S. GAAP”)
applied on a consistent basis throughout the periods presented (other than as described therein); the summary and selected consolidated financial data included or incorporated by reference in the Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries and presents fairly, on the basis stated in or incorporated by reference in the Preliminary Prospectus, the Pricing Disclosure
Package or the Prospectus, the information shown therein and has been compiled on a basis consistent with that of the audited consolidated financial statements included therein;
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xi. Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus any material loss or material interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Pricing Disclosure Package and the Prospectus; and, since the
respective dates as of which information is given in the Pricing Disclosure Package and the Prospectus, there has not been any change in the capital stock (other than as a result of (i) the grant, vesting or exercise of stock options or other
equity incentives pursuant to the Company’s equity incentive plans or (ii) the repurchase of shares of capital stock pursuant to agreements or other arrangements providing for an option to repurchase or a right of first refusal on behalf
of the Company, in each case as such (A) equity incentive plans, (B) outstanding equity incentives and (C) agreements or other arrangements are described in the Pricing Disclosure Package and the Prospectus) or
long-term
debt of the Company or any of its subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Company on any class of share capital of the Company, or any
material adverse change, or any development involving a prospective material adverse change, in or affecting the general business affairs, management, financial position, shareholders’ equity or results of operations of the Company and its
subsidiaries, taken as a whole (each, a “Material Adverse Change”), except in each case as set forth or contemplated in the Pricing Disclosure Package and the Prospectus;
xii. The Company and its subsidiaries have valid title in fee simple to all real and personal property
owned by them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Pricing Disclosure Package and the Prospectus or such as do not materially affect the value of such property and do not materially
interfere with the use made and proposed to be made of such property by the Company and its subsidiaries; and any real property and buildings held under lease by the Company and its subsidiaries are held by them, to the Company’s knowledge,
under valid, subsisting and enforceable leases with such exceptions as are not material and do not materially interfere with the use made and proposed to be made of such property and buildings by the Company and its subsidiaries;
xiii. The Company has been duly incorporated and is validly existing as an exempted company in good
standing under the laws of Bermuda, with power and authority (corporate and other) to own its properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation
for the transaction of business and is in good standing (where such concept exists) under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so qualified in any such jurisdiction; and each subsidiary of the Company has been duly incorporated or otherwise organized, as applicable, and is validly existing as a corporation or
other entity, as applicable, in good standing (where such concept exists) under the laws of its applicable jurisdiction of incorporation or organization (where such concept exists) with the corporate or other power and authority to own its
properties and conduct its business as described in the Pricing Disclosure Package and the Prospectus, and has been duly qualified as a foreign corporation or other entity, as applicable, for the transaction of its business as described in the
Pricing Disclosure Package and the Prospectus under the laws of each other jurisdiction in which it owns or leases properties or conducts any business so as to require such qualification;
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xiv. The Company has an authorized capitalization as set
forth in the Pricing Disclosure Package and the Prospectus, and all of the issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and
non-assessable
and conform to the description thereof contained in the Pricing Disclosure Package and the Prospectus; and all of the issued shares of capital stock of each subsidiary of the Company have been duly and validly authorized and issued, are fully paid
and
non-assessable
and, except for directors’ qualifying shares and as described in the Pricing Disclosure Package, are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; except as described in the Prospectus, there are no outstanding securities convertible into or exchangeable for, or warrants, rights or options to purchase from the Company, or obligations of the Company to issue,
the Company’s Class A common shares, par value $0.001 per share (the “Common Shares”), or any other class of share capital of the Company; and except as described in the Prospectus, there are no restrictions on subsequent
transfers of the Common Shares under the laws of Bermuda;
xv. Except as described in the Pricing
Disclosure Package, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to file a registration statement under the Securities Act with respect to any
securities of the Company;
xvi. The issuance and sale of the Notes, the execution, delivery and
performance by the Company of the Notes, the Indenture and this Agreement, the application of the proceeds from the sale of the Notes as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus and the
consummation of the transactions contemplated hereby and thereby, will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan
agreement, lease 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, (B) result in any violation of the Memorandum of Association,
Bye-laws
or similar organizational documents of the Company or any of its subsidiaries, or (C) result in any
violation of any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties, except in the case of (A) and (C) for such
violations as would not, individually or in the aggregate, reasonably be expected to (x) have a Material Adverse Change and (y) impair, in any material respect, the consummation of the transactions contemplated by this Agreement ((x) and
(y) collectively, a “Material Adverse Effect”); and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the issue and sale of the Notes,
the execution, delivery and performance by the Company of the Notes, the Indenture and this Agreement, the application of the proceeds from the sale of the Notes as described under “Use of Proceeds” in each of the Pricing Disclosure
Package and the Prospectus and the consummation of the transactions contemplated hereby and thereby, except for (i) such consents, approvals, authorizations, orders, registrations or qualifications as may be required under the Exchange Act and
applicable state and foreign securities laws and/or the bylaws and rules of the Financial Industry Regulatory Authority, Inc. (the “FINRA”) in connection with the purchase and distribution of the Notes by the Underwriters or
(ii) where the failure to obtain any such consent, approval, authorization, order, registration or qualification would not impair, in any material respect, the ability of the Company or any other party hereto to consummate the transactions
contemplated by this Agreement;
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xvii. Neither the Company nor any of its subsidiaries is
(i) in violation of its Memorandum of Association,
Bye-laws
or similar organizational documents, or (ii) in default in the performance or observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which it is a party or by which it or any of its properties may be bound, except in the case of (ii) for such defaults as
would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
xviii. The statements set forth in each of the Pricing Disclosure Package and the Prospectus under the
caption “Description of Debt Securities,” as supplemented by the statements set forth under the caption “Description of Notes,” insofar as they purport to constitute a summary of the terms of the Indenture and the Notes, under
the caption “Tax Considerations,” and under the subsection “Regulation” under the caption “Business” insofar as they purport to describe the provisions of the laws and/or regulations referred to therein, are accurate,
complete and fair in all material respects;
xix. None of the transactions contemplated by this
Agreement (including, without limitation, the use of the proceeds from the sale of the Notes), will violate or result in a violation of Section 7 of the Exchange Act, or any regulation promulgated thereunder, including, without limitation,
Regulations T, U and X of the Board of Governors of the Federal Reserve System;
xx. Other than as
set forth in the Pricing Disclosure Package and the Prospectus, there are no legal, or governmental or regulatory proceedings pending to which the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the
Company is a party or of which any property or assets of the Company or any of its subsidiaries or, to the Company’s knowledge, any officer or director of the Company is the subject which, if determined adversely to the Company, would
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and, to the best of the Company’s knowledge, no such proceedings are threatened or contemplated by governmental authorities or regulatory organizations
or threatened by others;
xxi. The Company is not, and after giving effect to the offer and sale of
the Notes and the application of the proceeds therefrom as described under “Use of Proceeds” in each of the Pricing Disclosure Package and the Prospectus, will not be, an “investment company”, as such term is defined in the
Investment Company Act of 1940, as amended (the “Investment Company Act”);
xxii. The
Company and its affiliates have not taken, directly or indirectly, any action designed to cause or result in, or that could reasonably be expected to cause or result in, or that has constituted the stabilization or manipulation of the price of any
security of the Company in connection with the offering of the Notes;
xxiii. The Company has not
distributed and, prior to the later to occur of the Time of Delivery and completion of the distribution of the Notes, will not distribute any offering material in connection with the offering and sale of the Notes other than any Preliminary
Prospectus, the Prospectus, any Issuer Free Writing Prospectus to which the Representatives have consented in accordance with Section 1(a)(viii) or 6(a) and any Issuer Free Writing Prospectus set forth on Schedule III hereto;
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xxiv. Each of PricewaterhouseCoopers LLP and
PricewaterhouseCoopers Ltd., who have certified certain financial statements of the Company and its subsidiaries are independent registered public accounting firms as required by the Securities Act and the rules and regulations of the Commission
thereunder and the Public Company Accounting Oversight Board (United States);
xxv. The Company
maintains a system of internal control over financial reporting (as such term is defined in Rule
13a-15(f)
under the Exchange Act that complies with the requirements of the Exchange Act and has been designed
by the Company’s principal executive officer and principal financial officer, or under their supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with U.S. GAAP. Except as disclosed in the Pricing Disclosure Package and the Prospectus, the Company’s internal control over financial reporting is effective and the Company is not aware of any material weaknesses in its
internal control over financial reporting (whether or not remediated), it being understood that this subsection shall not require the Company to comply with Section 404 of the Sarbanes-Oxley Act of 2002 as of any date earlier than such date the
Company would otherwise be required to so comply under applicable laws;
xxvi. Since the date of
the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package and the Prospectus, there has been no change in the Company’s internal control over financial reporting that has materially and
adversely affected, or is reasonably likely to materially and adversely affect, the Company’s internal control over financial reporting;
xxvii. The Company maintains disclosure controls and procedures (as such term is defined in Rule
13a-15(e)
under the Exchange Act) that comply with the requirements of the Exchange Act applicable to the Company; such disclosure controls and procedures have been designed to ensure that material information
relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal financial officer by others within those entities; and such disclosure controls and procedures are effective;
xxviii. This Agreement has been duly authorized, executed and delivered by the Company and the Company
has all requisite power and authority to perform its obligations hereunder;
xxix. The Company has
all requisite power and authority (corporate and other), to execute, deliver and perform its obligations under the Base Indenture and the Supplemental Indenture. The Base Indenture and the Supplemental Indenture have been duly and validly authorized
by the Company, and upon their execution and delivery and, assuming due authorization, execution and delivery by the Trustee, will constitute valid and legally binding agreements of the Company, enforceable against the Company in accordance with
their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws relating to or affecting creditors’ rights generally and by general equitable principles
(regardless of whether such enforceability is considered in a proceeding in equity or at law). The Base Indenture and the Supplemental Indenture shall comply in all material respects with the requirements of the Trust Indenture Act. The Indenture
will conform to the descriptions thereof in each of the Pricing Disclosure Package and the Prospectus;
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xxx. The Company has all requisite power and authority
(corporate and other) to execute, issue, sell and perform its obligations under the Notes. The Notes have been duly authorized by the Company and, when duly executed by the Company in accordance with the terms of the Indenture, assuming due
authentication of the Notes by the Trustee, upon delivery to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued and delivered and will constitute valid and legally binding obligations of the Company
entitled to the benefits of the Indenture, enforceable against the Company in accordance with their terms, except as such enforceability may be limited by bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium, and other laws
relating to or affecting creditors’ rights generally and by general equitable principles (regardless of whether such enforceability is considered in a proceeding in equity or at law). The Notes will conform in all material respects to the
description thereof in each of the Pricing Disclosure Package and the Prospectus;
xxxi. Each
subsidiary of the Company that is required to be organized and licensed as an insurance company (collectively, the “Insurance Subsidiaries”) is duly licensed as required in its jurisdiction of organization and is duly licensed or
authorized as required in each jurisdiction outside its jurisdiction of organization where it is required to be so licensed or authorized to conduct its business as described in the Registration Statement, the Pricing Disclosure Package and the
Prospectus, except where the failure to be so licensed or authorized, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect. The Insurance Subsidiaries have made all required filings (including
statutory annual and quarterly statements and statutory balance sheets and income statements included therein) under applicable insurance statutes in each jurisdiction where such filings are required, except for such filings the failure of which to
make would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect. Each of the Insurance Subsidiaries has all other necessary authorizations, approvals, orders, consents, certificates, permits,
registrations and qualifications (“Authorizations”), of and from all insurance regulatory authorities necessary to conduct their respective existing business as described in the Registration Statement, the Pricing Disclosure Package and
the Prospectus, except where the failure to have such Authorizations, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect, and no Insurance Subsidiary has received any notification from any
insurance regulatory authority to the effect that any additional Authorizations are needed to be obtained by any Insurance Subsidiary in any case where it would reasonably be expected that the failure to obtain such additional Authorizations or the
limiting of the writing of such business would result in a Material Adverse Effect, and, except as set forth in the Registration Statement, the Pricing Disclosure Package and the Prospectus, no insurance regulatory authority having jurisdiction over
any Insurance Subsidiary has issued any order or decree impairing, restricting or prohibiting (A) the payment of dividends by any Insurance Subsidiary to its parent, other than those restrictions applicable to insurance or reinsurance companies
under such jurisdiction generally or (B) the continuation of the business of the Company or any of the Insurance Subsidiaries in all material respects as presently conducted, in each case except where such orders or decrees would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect;
xxxii. Neither the Company nor any of its Insurance Subsidiaries has received any written notice from
any of the other parties to any material reinsurance treaties, contracts, agreements or arrangements to which the Company or any Insurance Subsidiary is a party that such other party intends not to perform its obligations thereunder, except to the
extent that such nonperformance would not have a Material Adverse Effect;
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xxxiii. The Company and each of its subsidiaries carry or
are covered by insurance in such amounts and covering such risks as the Company reasonably believes are prudent and customary in the business in which the Company is engaged; and the Company has no reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business;
xxxiv. The Company is not aware of any existing or imminent labor disturbances by any of its employees
that would reasonably be expected to have a Material Adverse Effect;
xxxv. There are no contracts
or documents that are required to be described in the Registration Statement, the Pricing Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that have not been so described and filed as required;
xxxvi. No forward-looking statement (within the meaning of Section 27A of the Securities Act and
Section 21E of the Exchange Act) contained in the Registration Statement, the Preliminary Prospectus and the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith;
xxxvii. The Company and its subsidiaries own or possess adequate rights to use all material patents,
patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses,
know-how,
software, systems and technology (including trade secrets and
other unpatented and/or unpatentable proprietary or confidential information, systems or procedures) necessary for the conduct of their respective businesses as currently conducted (collectively, the “Intellectual Property”), except where
the failure to own or possess such rights would not reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, the present employment of the Intellectual Property by the Company and its subsidiaries does not infringe
or otherwise violate any rights of any third party in respect of the Intellectual Property that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries have not received any
unresolved notice of material infringement of or conflict with rights of third parties with respect to any of the Intellectual Property;
xxxviii. There are no business relationships or related party transactions involving the Company or any
subsidiary or any other person required by the Securities Act to be described in the Registration Statement, the Preliminary Prospectus or the Prospectus that have not been described as required;
xxxix. The Company and its subsidiaries have filed all necessary federal, state, local and foreign
income tax returns and have paid all taxes required to be paid by any of them, and, if due and payable, any related or similar assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or penalties as may be
being contested in good faith and by appropriate proceedings or where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect;
xl. Nothing has come to the attention of the Company that has caused the Company to believe that the
statistical and market-related data included or incorporated by reference in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package and the Prospectus is not based on or derived from sources that are reliable and
accurate in all material respects;
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xli. No subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from making any other distribution on such subsidiary’s capital stock or other ownership interests, from repaying to the Company any loans or advances to such subsidiary from the
Company or from transferring any of such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in the Pricing Disclosure Package and the Prospectus;
xlii. Immediately after the consummation of the issuance of the Notes, the Company will be Solvent. As
used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (i) the present fair market value (or present fair saleable value) of the assets of the Company are not less than the total amount
required to pay the probable liabilities of the Company on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (ii) the Company is able to realize upon its assets and pay its debts
and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (iii) assuming the sale of the Notes as contemplated by this Agreement, the Registration Statement, the Pricing
Disclosure Package and the Prospectus, the Company is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature, (iv) the Company is not engaged in any business or transaction, and is not about to engage
in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which the Company is engaged, and (v) the Company is not a defendant
in any civil action that would result in a judgment that the Company is or would become unable to satisfy. In computing the amount of such contingent liabilities at any time, it is intended that such liabilities will be computed at the amount that,
in the light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability;
xliii. The Company does not have immunity from the jurisdiction of any court or from any legal process
(whether through service or notice, attachment prior to judgment, attachment in aid of execution or otherwise) under the laws of Bermuda preventing the enforcement of this Agreement in respect of itself or its property, except as may be limited
under New York or other applicable law;
xliv. All payments to be made and payable on the share
capital and the Notes of the Company, may, under the current applicable laws and regulations of Bermuda, be paid in U.S. dollars that may be freely transferred out of Bermuda; (ii) all such payments are not or will not be, as the case may be,
subject to withholding or other taxes under the current laws and regulations of Bermuda; and (iii) all such payments under such current laws and regulations are or will be otherwise free and clear of any other tax (save for any income tax that
may be payable by the recipient of a distribution who is resident in Bermuda), withholding or deduction in Bermuda and without the necessity of obtaining any consent, approval, authorization or order in Bermuda;
xlv. No stamp, registration, issuance or other transfer taxes or duties and no capital gains, income,
withholding or other taxes are payable by or on behalf of the Underwriters in connection with: (A) the issuance, sale, transfer or delivery of the Notes by the Company to or for the respective accounts of the several Underwriters, (B) the
sale, transfer or delivery of the Notes by the Underwriters to the subsequent purchasers thereof in the manner contemplated by this Agreement, (C) the execution and delivery of and performance under this Agreement or (D) any subsequent transfer
of the Notes through the facilities of The Depository Trust Company (“DTC”);
11
xlvi. Under the laws of Bermuda, the courts of Bermuda
will recognize and give effect to the choice of law provisions set forth in Sections 19 and 21 hereof and enforce judgments of U.S. courts obtained against the Company to enforce this Agreement, except for those laws (i) which the courts of
Bermuda consider to be procedural in nature, (ii) which are revenue or penal laws or (iii) the application of which would be inconsistent with public policy, as such term is interpreted under the laws of Bermuda;
xlvii. The Company has the power to submit, and pursuant to this Agreement has legally, validly,
effectively and irrevocably submitted, to the fullest extent permitted by applicable law, to the exclusive jurisdiction of the U.S. federal and New York state courts, in the Borough of Manhattan in New York City, and has the power to designate,
appoint and empower, and has legally, validly, effectively and irrevocably designated, appointed and empowered, an agent for service of process in any suit or proceeding arising out of or related to this Agreement and the transactions contemplated
hereby, as provided in Section 21 of this Agreement;
xlviii. The Company has no debt
securities (other than the Notes) or preferred stock rated by any “nationally recognized statistical rating organization,” as defined in Section 3(a)(62) of the Exchange Act;
xlix. Except as in each case would not reasonably be expected to have a Material Adverse Effect, the
Company has operated its business in a manner compliant with all privacy and data protection laws and regulations applicable to the Company’s collection, handling, and storage of its customers’ data; the Company has policies and procedures
in place designed to ensure privacy and data protection laws are complied with and takes steps which are reasonably designed to assure compliance in all material respects with such policies and procedures;
l. None of the Company, any of its subsidiaries, or their respective directors or officers, nor to the
knowledge of the Company, any agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries has (i) made any unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977;
(iv) violated or is in violation of any provision of the Bribery Act 2010 of the United Kingdom; or (v) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment;
li. The operations of the Company and its subsidiaries are and have been conducted at all times in
compliance with the applicable requirements of anti-money laundering laws, including, but not limited to, the Bank Secrecy Act of 1970, as amended by the USA PATRIOT ACT of 2001, and the rules and regulations promulgated thereunder, and the
anti-money laundering laws of the various jurisdictions to which the Company and its subsidiaries are subject (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
lii. None of the Company, any of its subsidiaries, or their respective directors or officers, nor, to
the knowledge of the Company, any agent, employee, affiliate or other person acting on behalf of the Company or any of its subsidiaries is currently the subject or the target of any
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sanctions administered or enforced by the U.S. government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”), or other
relevant sanctions authority (collectively, “Sanctions”), and the Company will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity (i) to fund or facilitate any activities of or business with any person, or in any country or territory, that, at the time of such funding, is the subject or the target of Sanctions or
(ii) in any other manner that will result in a violation by any person (including any person participating in the transaction, whether as underwriter, advisor, investor or otherwise) of Sanctions;
liii. The Company believes either or both: (i) less than 20% of the total value of all of the
Company’s stock will be owned (directly or indirectly) by persons who are (directly or indirectly) insured under any policy of insurance or reinsurance issued by the Company’s subsidiaries, or who are related persons to any such persons,
for any taxable year in the foreseeable future, or (ii) that its and its Subsidiary’s gross related person insurance income (as defined in Section 953(c)(2) of the U.S. Internal Revenue Code) will not equal or exceed 20% of each such
company’s gross insurance income for any taxable year in the foreseeable future;
liv. The
Company has received from the Bermuda Minister of Finance an assurance under the Exempted Undertakings Tax Protection Act 1966, as amended, of Bermuda to the effect set forth in the Preliminary Prospectus, the Pricing Disclosure Package and the
Prospectus under the caption “Tax Considerations—Bermuda Tax Considerations” and the Company has not received any notification to the effect (and is not otherwise aware) that such assurance may be revoked or otherwise not honored by
the Bermuda government;
lv. Based upon and subject to the assumptions and qualifications set forth
in the Registration Statement, the Pricing Disclosure Package and the Prospectus under the caption “Tax Considerations,” (A) for purposes of the rules relating to passive foreign investment companies under section 1291 of the U.S. Internal
Revenue Code, the Company believes (x) that financial reserves of Athene Life Re, Ltd. and the German Group Companies (as defined in the Registration Statement) are not in excess of their reasonable needs to conduct their insurance business and
(y) the “applicable insurance liabilities” of Athene Life Re, Ltd. and the German Group Companies constitute more than 25% of their total assets, and (B) neither the Company nor Athene Life Re, Ltd. should be considered to be
engaged in a trade or business within the United States for purposes of Section 864(b) of the U.S. Internal Revenue Code;
lvi. The Company was not for its most recent taxable year, and does not expect to be for its current
taxable year, a “passive foreign investment company” within the meaning of Section 1297 of the U.S. Internal Revenue Code;
lvii. The interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package and the Prospectus fairly present in all material respects the information in accordance with the Commission’s rules and guidelines applicable
thereto; and
lviii. The Company is not a “shell company” as described in Rule 144(i)
under the Securities Act.
2. Subject to the terms and conditions herein set forth, the Company agrees to issue
and sell to the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase
13
from the Company, at a purchase price of 99.196% of the principal amount thereof, plus accrued interest from the Time of Delivery to the date of payment, if any, the principal amount of the Notes
set forth opposite the name of such Underwriter in Schedule I hereto.
3. Each Underwriter represents that it has,
to the best of its knowledge, complied with, and agrees to comply with, the selling restrictions included in the “Underwriting” section of the most recent Preliminary Prospectus in connection with the offering of the Notes.
4. (a) The Notes to be purchased by each of the Underwriters hereunder, shall be delivered by or on behalf of the
Company to the Underwriters, or the Trustee as custodian for DTC, for the account of such Underwriters, against payment by or on behalf of the Underwriters of the purchase price therefor by wire transfer of Federal
(same-day)
funds to the account specified by the Company to the Representatives at least forty-eight hours in advance, by causing DTC to credit the Notes to the account of the Underwriters at DTC. The Notes
will be evidenced by one or more global securities in definitive form (the “Global Notes”) and will be registered in the name of Cede & Co., as nominee of DTC. The Notes to be delivered to the Underwriters shall be made available
to the Underwriters in New York City for inspection and packaging not later than 10:00 a.m., New York City time, on the business day next preceding the Time of Delivery. The time and date of such delivery and payment shall be 9:30 a.m., New York
City time, on January 12, 2018 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date for delivery of the Notes is herein called the “Time of Delivery.”
(b) The documents to be delivered at the Time of Delivery by or on behalf of the parties hereto pursuant to
Section 8 hereof, including any documents requested by the Underwriters pursuant to Section 8 hereof will be delivered at the offices of Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004
(the “Closing Location”), and the Notes will be delivered through the facilities of DTC at its office or the office of its designated custodian, all at the Time of Delivery. A meeting will be held at the Closing Location at 5:00 p.m., New
York City time, on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive
order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by the Representatives and to file such Prospectus pursuant to Rule
424(b) under the Securities Act not later than the Commission’s close of business on the second business day following the execution and delivery of this Agreement; to make no further amendment or any supplement to the Registration Statement or
the Prospectus prior to the Time of Delivery except as provided herein; to advise the Representatives, promptly after it receives notice thereof, of the time when any amendment or supplement to the Registration Statement or the Prospectus has been
filed and to furnish the Representatives with copies thereof; to file promptly all material required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Securities Act; to advise the Representatives, promptly after it
receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing Prospectus, of the suspension of the qualification of the Notes for offering
or sale in any jurisdiction, of the initiation or threatening of any proceeding or examination for any such purpose, or any notice from the Commission objecting to the use of the form of Registration Statement or any post-effective supplement
thereto or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any Issuer Free
14
Writing Prospectus or for additional information; and, in the event of the issuance of any stop order or of any order preventing or suspending the use of the Prospectus or any Issuer Free Writing
Prospectus or suspending any such qualification, to use promptly its best efforts to obtain its withdrawal;
(b) To
furnish promptly to each of the Representatives and to counsel for the Underwriters a signed copy of the Registration Statement as originally filed with the Commission, and each amendment thereto filed with the Commission, including all consents and
exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the following documents as
the Representatives shall reasonably request: (A) conformed copies of the Registration Statement as originally filed with the Commission and each amendment thereto (in each case excluding exhibits other than this Agreement and the computation
of the ratio of earnings to fixed charges), (B) each Preliminary Prospectus, the Prospectus and any amended or supplemented Prospectus, (C) each Issuer Free Writing Prospectus, and (D) any document incorporated by reference in any
Preliminary Prospectus or the Prospectus; and, if the delivery of a prospectus is required at any time after the date hereof in connection with the offering or sale of the Notes or any other securities relating thereto and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify the Representatives and, upon their request, to file such document and to prepare and furnish without charge to each Underwriter and to any dealer
in securities as many copies as the Representatives may from time to time reasonably request of an amended or supplemented Prospectus that will correct such statement or omission or effect such compliance;
(d) The Company consents to the use of the Pricing Disclosure Package and the Prospectus in accordance with the
securities or Blue Sky laws of the jurisdictions in which the Notes are offered by the Underwriters and by all dealers to whom Notes may be sold, in connection with the offering and sale of the Notes;
(e) Promptly from time to time to take such action as the Underwriters may reasonably request to qualify the Notes for
offering and sale under the securities laws of such jurisdictions as the Underwriters may request and to comply with such laws so as to permit the continuance of sales and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Notes, provided that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction or subject itself to
qualification in any jurisdiction in which it was not otherwise subject to taxation;
(f) Prior to 10:00 a.m., New
York City time, on the New York Business Day next succeeding the date of this Agreement (or such later time as may be agreed by the Company and the Representatives) and from time to time, to furnish the Underwriters with written and electronic
copies of the Prospectus in New York City in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is required at any
time prior to the expiration of nine months after the time of issue of the Prospectus in connection with the offering or sale of the Notes and if at such time any event shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made
15
when such Prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Securities Act) is delivered, not misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Prospectus in order to comply with the Securities Act, to notify you and upon your request to prepare and furnish without charge to each Underwriter and to any dealer in securities as many written and
electronic copies as you may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(g) To make generally available to its securityholders as soon as practicable (which may be satisfied by filing with
the Commission’s Electronic Gathering, Analysis and Retrieval system or any successor thereto (“EDGAR”)), but in any event not later than sixteen months after the effective date of the Registration Statement (as defined in Rule 158(c)
under the Securities Act), an earnings statement of the Company and its subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(h) For a period commencing on the date hereof through and including
January 12, 2018, the Company agrees not to, directly or indirectly, (i) offer for sale, sell, or otherwise dispose of (or enter into any transaction or device that is designed to, or would be expected to, result in the disposition by any
person at any time in the future of) any debt securities of the Company substantially similar to the Notes or securities convertible into or exchangeable for such debt securities of the Company, or sell or grant options, rights or warrants with
respect to such debt securities of the Company or securities convertible into or exchangeable for such debt securities of the Company, (ii) enter into any swap or other derivatives transaction that transfers to another, in whole or in part, any
of the economic benefits or risks of ownership of such debt securities of the Company, whether any such transaction described in clause (i) or (ii) above is to be settled by delivery of debt securities of the Company or other securities, in
cash or otherwise, (iii) file or cause to be filed a registration statement, including any amendments, with respect to the registration of debt securities of the Company substantially similar to the Notes or securities convertible, exercisable
or exchangeable into debt securities of the Company, or (iv) publicly announce an offering of any debt securities of the Company substantially similar to the Notes or securities convertible or exchangeable into such debt securities, in each
case without the prior written consent of Barclays Capital Inc. and Goldman Sachs & Co. LLC, on behalf of the Underwriters. For the avoidance of doubt, nothing contained in this Section 5(h) shall prohibit or in any way restrict, or be
deemed to prohibit or in any way restrict, the issuance of notes by a special purpose trust formed solely to hold funding agreements and to issue funding agreement backed notes;
(i) To file with the Commission such information on Form
10-Q
or Form
10-K,
as may be required by Rule 463 under the Securities Act;
(j) If the
Company elects to rely upon Rule 462(b), the Company shall file a Rule 462(b) Registration Statement with the Commission in compliance with Rule 462(b) by 10:00 p.m., Washington, D.C. time, on the date of this Agreement (or other applicable EDGAR
filing deadline), and the Company shall at the time of filing either pay to the Commission the filing fee for the Rule 462(b) Registration Statement or give irrevocable instructions for the payment of such fee pursuant to Rule 3a(c) of the
Commission’s Informal and Other Procedures (16 CFR 202.3a);
(k) The Company will apply the net proceeds from
the sale of the Notes to be sold by it hereunder substantially in accordance with the description set forth in the Pricing Disclosure Package and the Prospectus under the caption “Use of Proceeds”;
16
(l) Upon request of any Underwriter, to furnish, or cause to be furnished,
to such Underwriter an electronic version of the Company’s applicable trademarks, servicemarks and corporate logo for use on the website, if any, operated by such Underwriter for the purpose of facilitating the
on-line
offering of the Notes (the “License”); provided, however, that the License shall be used solely for the purpose described above, is granted without any fee, may not be assigned or transferred
or sublicensed and terminates immediately upon the completion of the distribution of the Notes by any such Underwriter;
(m) To not take, directly or indirectly, any action designed to or that could reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company in connection with the offering of the Notes;
(n) The Company will use its best efforts to cause the Notes to be eligible for clearance and settlement through DTC;
(o) The Company will do and perform all things required or necessary to be done and performed under this Agreement
by it prior to the Time of Delivery, and to satisfy all conditions precedent to the Underwriters’ obligations hereunder to purchase the Notes;
(p) To file promptly with the Commission any amendment or supplement to the Registration Statement or the Prospectus
that may, in the reasonable judgment of the Company or the Representatives, be required by the Securities Act or requested by the Commission;
(q) Prior to filing with the Commission any amendment or supplement to the Registration Statement, the Prospectus,
any document incorporated by reference in the Prospectus or any amendment to any document incorporated by reference in the Prospectus, to furnish a copy thereof to the Representatives and counsel for the Underwriters and obtain the consent of the
Representatives to the filing (such consent to not be unreasonably withheld or delayed); and
(r) To pay the
required Commission filing fees relating to the Notes within the time required by Rule 456(b)(1) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act.
6. (a) The Company represents and agrees that, without the prior consent of the Representatives, it has not made and
will not make any offer relating to the Notes that would constitute a “free writing prospectus” as defined in Rule 405 under the Securities Act; and each Underwriter represents and agrees that, without the prior consent of the Company and
the Representatives, it has not made and will not make any offer relating to the Notes that would constitute a free writing prospectus; any such Issuer Free Writing Prospectus the use of which has been consented to by the Company and the
Representatives is listed on Schedule III hereto;
(b) The Company has complied and will comply with the
requirements of Rule 433 under the Securities Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending; and
(c) The Company agrees that if at any time following issuance of a Issuer Free Writing Prospectus any event occurred or
occurs as a result of which such Issuer Free Writing Prospectus would conflict with the information in the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus or would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives and, if requested by the
Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus or other document which will correct such conflict, statement or
17
omission; provided, however, that this representation and warranty shall not apply to any statements or omissions in an Issuer Free Writing Prospectus made in reliance upon and in conformity with
Underwriter Information.
7. The Company covenants and agrees with the several Underwriters that the Company will
pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel, outside advisers and accountants in connection with the registration, issuance and delivery of the Notes under the Securities Act and
all other expenses in connection with the preparation, printing, reproduction, filing and distribution of the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package, the Prospectus and any Issuer Free Writing Prospectus
and all amendments and supplements thereto and the mailing and delivering of copies thereof to the Underwriters and dealers; (ii) the cost of printing or producing this Agreement, closing documents (including any compilations thereof), the
Indenture and any other documents in connection with the offering, purchase, sale and delivery of the Notes; (iii) all expenses in connection with the qualification of the Notes for offering and sale under state and foreign securities laws as
provided in Section 5(c) hereof, including the fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky survey; (iv) the filing fees incident to, and the fees and
disbursements of counsel for the Underwriters in connection with, any required review by FINRA (including, if applicable, the fees and expenses of any “qualified independent underwriter” and its counsel as may be required by the rules and
regulations of FINRA) of the terms of the sale of the Notes; provided that the costs and fees of counsel described in clauses (iii) and (iv) shall not exceed $10,000; (v) fees and expenses associated with filings required to be made with the
Commission; (vi) the issuance and delivery by the Company of the Notes and any taxes payable in connection therewith; (vii) the furnishing of such copies of the Preliminary Prospectus, the Pricing Disclosure Package and the Prospectus;
(viii) the preparation of certificates for the Notes (including, without limitation, printing and engraving thereof); (ix) the approval of the Notes by DTC for “book-entry” transfer; (x) the rating of the Notes; (xi) the
obligations of the Trustee, any agent of the Trustee and the counsel for the Trustee in connection with the Indenture and the Notes; (xii) all expenses of the Company related to the “road-show” for any offering of the Notes, including
without limitation, expenses associated with the preparation or dissemination of any electronic road show, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the
road show presentations with the prior approval of the Company; and (xiii) all other costs and expenses incident to the performance of the Company’s obligations hereunder which are not otherwise specifically provided for in this Section.
It is understood, however, that, except as provided in this Section, and Sections 9 and 13 hereof, the Underwriters will pay all of their own costs and expenses, including the fees of their counsel, stock transfer taxes on resale of any of the Notes
by them, and any advertising expenses connected with any offers they may make.
8. The obligations of the
Underwriters hereunder, as to the Notes to be delivered at the Time of Delivery, shall be subject, in their discretion, to the condition that all representations and warranties and other statements of the Company herein are, at and as of the Time of
Delivery, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the
applicable time period prescribed for such filing by the rules and regulations under the Securities Act and in accordance with Section 5(a) hereof; all material required to be filed by the Company pursuant to Rule 433(d) under the Securities
Act shall have been filed with
18
the Commission within the applicable time period prescribed or as permitted for such filing by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Securities Act, the Rule
462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time (or other applicable EDGAR filing deadline), on the date of this Agreement; no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission and no stop order suspending or preventing the use of the Prospectus or any Issuer
Free Writing Prospectus shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) Fried, Frank, Harris, Shriver & Jacobson LLP, counsel for the Underwriters, shall have furnished to you
their written opinion (including certain negative assurance statements), dated the Time of Delivery, in form and substance reasonably satisfactory to you, with respect to such matters as you may reasonably request, and such counsel shall have
received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) (i) Sidley Austin
LLP
, counsel for the Company, shall have furnished to you their written opinion
(including certain negative assurance statements) (a form of such opinion and letter is attached as Annex I(a) hereto), each dated the Time of Delivery, in form and substance reasonably satisfactory to you; and
(ii) Conyers Dill & Pearman Limited, as Bermuda counsel for the Company shall have furnished to you their written opinion (a form of
such opinion is attached as Annex I(b) hereto), each dated the Time of Delivery, in form and substance reasonably satisfactory to you;
(d) On the date of the Prospectus at a time prior to or contemporaneously with the execution of this Agreement, at 9:30
a.m., New York City time, and also at the Time of Delivery, each of PricewaterhouseCoopers LLP and PricewaterhouseCoopers Ltd., shall have furnished to you a letter or letters, dated the respective dates of delivery thereof, in form and substance
satisfactory to you;
(e) (i) Neither the Company nor any of its subsidiaries, taken as a whole, shall have
sustained since the date of the latest audited financial statements included or incorporated by reference in the Pricing Disclosure Package or the Prospectus any loss or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, except as set forth or contemplated in the Pricing Disclosure Package or the Prospectus, and (ii) since the respective dates as of
which information is given in the Pricing Disclosure Package or the Prospectus, there shall not have been any change in the capital stock or
long-term
debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the general business affairs, management, financial position, shareholders’ equity or results of operations of the Company and its subsidiaries or any dividend or
distribution of any kind declared, set aside for payment, paid or made by the Company on any class of share capital, taken as a whole, except as set forth or contemplated in the Pricing Disclosure Package or the Prospectus, the effect of which, in
any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes being delivered at the Time of Delivery on
the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
19
(f) On or after the Applicable Time (i) no downgrading shall have
occurred in the rating accorded the Company’s debt securities or the Company’s and the Insurance Subsidiaries’ financial strength or claims paying ability by any “nationally recognized statistical rating organization”, as
defined in 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 and the
Insurance Subsidiaries’ debt securities, financial strength or claims paying ability;
(g) On or after the
Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on The New York Stock Exchange (the “Exchange”); (ii) a suspension or material limitation
in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by Bermuda, U.S. federal or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in Bermuda or the United States; (iv) the outbreak or escalation of hostilities involving Bermuda or the United States or the declaration by the United States of a national emergency or war or
(v) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in Bermuda or the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in your judgment
makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Notes being delivered at the Time of Delivery on the terms and in the manner contemplated in the Pricing Disclosure Package or the Prospectus;
(h) The Company shall have complied with the provisions of Section 5(f) hereof with respect to the furnishing of
the Prospectus on the New York Business Day next succeeding the date of this Agreement;
(i) The Company shall have
furnished or caused to be furnished to you at the Time of Delivery a certificate of officers of the Company, satisfactory to you as to the accuracy of the representations and warranties of the Company, herein at and as of the Time of Delivery, as to
the performance by the Company of all of its obligations hereunder to be performed at or prior to the Time of Delivery, and the Company shall have furnished or caused to be furnished certificates as to the matters set forth in subsections
(a) and (e) of this Section 8 and as to such other matters as you may reasonably request;
(j) The
Company shall have furnished or caused to be furnished to you at the date of this Agreement and the Time of Delivery a certificate of the Chief Financial Officer of the Company, dated the date hereof and the Time of Delivery, in form and substance
satisfactory to you;
(k) No action shall have been taken and no statute, rule, regulation or order shall have been
enacted, adopted or issued by any Bermuda, U.S. federal or state, or other federal, state or foreign governmental or regulatory authority that would, as of the Time of Delivery, prevent the issuance or sale of the Notes by the Company; and no
injunction or order of any Bermuda, U.S. federal or state, or other federal, state or foreign court shall have been issued that would, as of the Time of Delivery, prevent the issuance or sale of the Notes by the Company;
(l) The Notes shall be eligible for clearance and settlement through DTC; and
(m) The Company and the Trustee shall have executed and delivered the Indenture, and the Underwriters shall have
received an electronic copy thereof, duly executed by the Company and the Trustee.
9. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages or liabilities, to which such Underwriter may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a
20
material fact contained in the Registration Statement or any amendment thereto, or the omission or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement
thereto, any Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Securities Act, or the omission or alleged omission to state therein a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not misleading, and will reimburse each Underwriter for any legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage or liability arises out of or is based upon
an untrue statement or alleged untrue statement or omission or alleged omission made in the Registration Statement, the Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer
Free Writing Prospectus in reliance upon and in conformity with Underwriter Information.
(b) Each Underwriter,
severally and not jointly, will indemnify and hold harmless the Company against any losses, claims, damages or liabilities to which the Company may become subject, under the Securities Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) an untrue statement or alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, or the omission or alleged omission to state therein a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in
the Registration Statement, any Preliminary Prospectus, the Pricing Disclosure Package or the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, in reliance upon and in conformity with the Underwriter
Information provided by such Underwriter; and will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or (b) of this Section 9 of notice of
the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection in relation to which notice was omitted. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such indemnified party (who shall not, except with the consent of the indemnified party, be counsel to the indemnifying party), and, after notice from the indemnifying party to
such indemnified party of its election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal
21
expenses of other counsel or any other expenses, in each case subsequently incurred by such indemnified party, in connection with the defense thereof other than reasonable costs of investigation.
No indemnifying party shall, without the written consent of the indemnified party, effect the settlement or compromise of, or consent to the entry of any judgment with respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the indemnified party is an actual or potential party to such action or claim) unless such settlement, compromise or judgment (i) includes an unconditional release of the
indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) referred to therein, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on
the other from the offering of the Notes. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above,
then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof), as well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case, as set forth on the cover page of the Prospectus. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total discounts and commission
received by such Underwriter with respect to the offering of the Notes exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to their respective obligations to purchase and not joint.
22
(e) The obligations of the Company under this Section 9 shall be in
addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each employee, agent, officer, director and partner of each Underwriter and each person, if any, who controls any Underwriter
within the meaning of the Securities Act and each broker-dealer affiliate of any Underwriter; and the obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to each officer and director of the Company and to each person, if any, who controls the Company within the meaning of the Securities Act.
10. (a) If any Underwriter shall default in its obligation to purchase the Notes that it has agreed to purchase
hereunder at the Time of Delivery, you may in your discretion arrange for you or another party or other parties to purchase such Notes on the terms contained herein. If within
thirty-six
hours after such
default by any Underwriter you do not arrange for the purchase of such Notes, then the Company shall be entitled to a further period of
thirty-six
hours within which to procure another party or other parties
satisfactory to you to purchase such Notes on such terms. In the event that, within the respective prescribed periods, you notify the Company that you have so arranged for the purchase of such Notes, or the Company notifies you that it has so
arranged for the purchase of such Notes, you or the Company shall have the right to postpone the Time of Delivery for a period of not more than seven calendar days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement, the Pricing Disclosure Package or the Prospectus, or in any other documents or arrangements, and the Company agrees to make promptly any amendments or supplements to the Registration Statement, the Pricing Disclosure Package
or the Prospectus which in your opinion may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been
a party to this Agreement with respect to such Notes.
(b) If, after giving effect to any arrangements for the
purchase of the Notes of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate principal amount of such Notes which remains unpurchased does not exceed
one-eleventh
of the aggregate principal amount of all Notes to be purchased at the Time of Delivery, then the Company shall have the right to require each
non-defaulting
Underwriter to purchase the aggregate principal amount of Notes which such Underwriter agreed to purchase hereunder at the Time of Delivery and, in addition, to require each
non-defaulting
Underwriter to
purchase its pro rata share (based on the aggregate principal amount of Notes which such Underwriter agreed to purchase hereunder) of the Notes of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its default.
(c) If, after giving effect
to any arrangements for the purchase of the Notes of a defaulting Underwriter or Underwriters by you and the Company as provided in subsection (a) above, the aggregate principal amount of such Notes which remains unpurchased exceeds
one-eleventh
of the aggregate principal amount of such Notes to be purchased at the Time of Delivery, or if the Company shall not exercise the right described in subsection (b) above to require
non-defaulting
Underwriters to purchase Notes of a defaulting Underwriter or Underwriters, then this Agreement shall thereupon terminate, without liability on the part of any
non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company and the Underwriters as provided in Section 7 hereof and the indemnity and contribution agreements in
Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
23
11. The respective indemnities, rights and obligations of contribution,
agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, or the Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the Notes.
12. The Company acknowledges that the
Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’ research
analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company and/or the offering that differ from the views of their respective investment banking divisions. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that the views expressed by their independent research
analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company acknowledges that each of the Underwriters is a full
service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short positions in debt or equity securities of the companies
that may be the subject of the transactions contemplated by this Agreement.
13. If this Agreement shall be
terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter except as provided in Sections 7 and 9 hereof; but, if for any other reason any Notes are not delivered by or on behalf of the
Company as provided herein, the Company will reimburse the Underwriters through you for all reasonable
out-of-pocket
expenses approved in writing by you, including fees
and disbursements of counsel, reasonably incurred by the Underwriters in making preparations for the purchase, sale and delivery of the Notes not so delivered, but the Company shall then be under no further liability to any Underwriter except as
provided in Sections 7 and 9 hereof.
14. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by you jointly as the Representatives.
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.
All statements, requests,
notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail, electronic mail or facsimile transmission to Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention:
Syndicate Registration, and with a copy, in the case of any notice pursuant to Section 9(c), to the Director of Litigation, Office of the General Counsel, Barclays Capital Inc., 745 Seventh Ave., New York, New York 10019; Goldman
Sachs & Co. LLC, 200 West Street, New York, New York 10282, Attention: Registration Department; Wells Fargo Securities, LLC, 550 South Tryon Street, 5
th
Floor, Charlotte, North Carolina
28202, Attention of Transaction Management; if to the Company shall be delivered or sent by mail, electronic mail or facsimile transmission to the address of the Company set forth on the cover of the Prospectus,
24
Attention: Secretary; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail, electronic mail or facsimile transmission to
such Underwriter at its address set forth in its Underwriters’ Questionnaire, which address will be supplied to the Company by you on request. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters and the Company and, to
the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other
person shall acquire or have any right under or by virtue of this Agreement. No purchaser of any of the Notes from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As used herein, the term “business day” shall mean any
day when the Commission’s office in Washington, D.C. is open for business.
17. The Company acknowledges and
agrees that (i) the purchase and sale of the Notes pursuant to this Agreement is an
arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory or fiduciary
responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other
obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that
the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto.
18. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and
the Underwriters, or any of them, with respect to the subject matter hereof.
19. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York.
20. The Company and each of 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.
21. The Company agrees that any suit or proceeding arising in respect of this Agreement or our engagement will be tried
exclusively in the U.S. District Court for the Southern District of New York or, if that court does not have subject matter jurisdiction, in any state court located in The City and County of New York and the Company irrevocably agrees to submit to
the jurisdiction of, and to venue in, such courts. The Company irrevocably appoints C T Corporation System as its authorized agent upon which process may be served in any such suit or proceeding, and agrees that service of process upon such
authorized agent, and written notice of such service to the Company by the person serving the same to the address provided in this Section 21, shall be deemed in every respect, effective service of process upon the Company in any such suit or
proceeding. The Company hereby represents and warrants that such authorized agents have accepted such appointment and have agreed to act as such authorized agents for service of process, as applicable. The Company further agrees to take any and all
action as may be necessary to maintain such designation and appointment of such authorized agents in full force and effect. The address of C T Corporation System is 111 Eighth Avenue, New York, NY 10011.
25
22. All sums payable by the Company under this Agreement shall be made
without
set-off
or counter-claims and free and clear of all deductions or withholdings for or on account of any present or future taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature and all interest, penalties or similar liabilities with respect thereto, unless the deduction or withholding is required by law. In that event, the Company shall pay such additional amounts as may be necessary to ensure that the amount
received will equal the full amount which would have been received had no such deduction or withholding been required.
23. The Company undertakes to pay and bear any stamp, issuance, registration, capital, transfer or similar taxes or
duties, including all interest and penalties, and otherwise to indemnify and hold harmless each Underwriter against any such taxes or duties, arising in connection with the purchase, sale, transfer and delivery of the Notes by the Company pursuant
to this Agreement, including (without limitation): (i) the issuance, sale, transfer and delivery of the Notes to or for the respective accounts of the several Underwriters, (ii) the sale, transfer and delivery of the Notes by the Underwriters,
to the subsequent purchasers thereof in the manner contemplated by this Agreement, (iii) the execution and delivery of and performance under this Agreement or (iv) any subsequent transfer of the Notes through the facilities of DTC.
24. This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument.
25. Notwithstanding anything herein to the contrary, the Company is authorized to disclose to any persons the U.S.
federal and state income tax treatment and tax structure of the potential transaction and all materials of any kind (including tax opinions and other tax analyses) provided to the Company relating to that treatment and structure, without the
Underwriters imposing any limitation of any kind. However, any information relating to the tax treatment and tax structure shall remain confidential (and the foregoing sentence shall not apply) to the extent necessary to enable any person to comply
with securities laws. For this purpose, “tax structure” is limited to any facts that may be relevant to that treatment.
If the
foregoing is in accordance with your understanding, please sign and return to us one for the Company and each of the Representatives plus one for each counsel counterparts hereof, and upon the acceptance hereof by you, on behalf of each of the
Underwriters, this letter and such acceptance hereof shall constitute a binding agreement among each of the Underwriters and the Company. It is understood that your acceptance of this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters, the form of which shall be submitted to the Company for examination, upon request, but without warranty on your part as to the authority of the signers thereof.
[Signature Pages Follow]
26
|
|
|
|
|
Very truly yours,
|
|
|
|
Athene Holding Ltd.
|
|
|
|
|
By:
|
|
/s/ Martin P. Klein
|
|
|
|
Name: Martin P. Klein
|
|
|
|
Title: Chief Financial Officer
|
27
|
|
|
|
|
Accepted as of the date first
written above
|
|
|
|
Barclays Capital Inc.
Goldman
Sachs & Co. LLC
Wells Fargo Securities, LLC
|
|
|
|
Barclays Capital Inc.
|
|
|
|
|
By:
|
|
/s/ Radhika Gupte
|
|
|
|
Name: Radhika Gupte
|
|
|
|
Title: Managing Director
|
|
|
|
Goldman Sachs & Co. LLC
|
|
|
|
|
By:
|
|
/s/ Adam Greene
|
|
|
|
Name: Adam Greene
|
|
|
|
Title: Managing Director
|
|
|
|
Wells Fargo Securities, LLC
|
|
|
|
|
By:
|
|
/s/ Carolyn Hurley
|
|
|
|
Name: Carolyn Hurley
|
|
|
|
Title: Director
|
|
|
|
On behalf of each of the Underwriters
|
28
SCHEDULE I
|
|
|
|
|
|
|
Underwriters
|
|
Principal Amount of
Notes
to be Purchased
|
|
|
Barclays Capital Inc.
|
|
$
|
265,000,000
|
|
|
Goldman Sachs & Co. LLC
|
|
$
|
265,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
$
|
145,000,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
65,000,000
|
|
|
Credit Suisse Securities (USA) LLC
|
|
$
|
65,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
65,000,000
|
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
$
|
65,000,000
|
|
|
RBC Capital Markets, LLC
|
|
$
|
65,000,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
1,000,000,000
|
|
|
|
|
|
|
|
SCHEDULE II
ATHENE HOLDING LTD.
FORM OF
PRICING TERM SHEET
SCHEDULE III
|
(a)
|
Issuer Free Writing Prospectus not included in the Pricing Disclosure Package
|
Net Road Show
|
(b)
|
Issuer Free Writing Prospectus included in the Pricing Disclosure Package
|
|
|
•
|
|
Issuer Free Writing Prospectus dated January 9, 2018, filed pursuant to Rule 433 under the Securities Act.
|
SCHEDULE IV
None
ANNEX I(a)
FORM OF OPINION OF
COUNSEL FOR
THE COMPANY
ANNEX I(b)
FORM OF OPINION OF
BERMUDA
COUNSEL FOR THE COMPANY
Exhibit 4.1
ATHENE HOLDING LTD.
ISSUER
AND
U.S. BANK NATIONAL
ASSOCIATION
TRUSTEE
INDENTURE
DATED AS OF JANUARY 12, 2018
DEBT SECURITIES
CROSS-REFERENCE TABLE
1
|
|
|
|
|
SECTION OF
TRUST INDENTURE ACT OF
1939, AS AMENDED
|
|
SECTION OF INDENTURE
|
|
310(a)
|
|
Inapplicable
|
|
310(b)
|
|
7.08
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
7.13
|
|
311(b)
|
|
7.13
|
|
311(c)
|
|
Inapplicable
|
|
312(b)
|
|
5.02(c)
|
|
312(c)
|
|
Inapplicable
|
|
313(a)
|
|
5.04(a)
|
|
313(b)
|
|
5.04(b)
|
|
313(c)
|
|
5.04(b)
|
|
313(d)
|
|
Inapplicable
|
|
314(a)
|
|
Inapplicable
|
|
314(b)
|
|
Inapplicable
|
|
314(c)
|
|
Inapplicable
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
Inapplicable
|
|
314(f)
|
|
Inapplicable
|
|
315(a)
|
|
Inapplicable
|
|
315(b)
|
|
Inapplicable
|
|
315(c)
|
|
Inapplicable
|
|
315(d)
|
|
Inapplicable
|
|
315(e)
|
|
Inapplicable
|
|
316(a)
|
|
Inapplicable
|
|
316(b)
|
|
Inapplicable
|
|
316(c)
|
|
Inapplicable
|
|
317(a)
|
|
Inapplicable
|
|
317(b)
|
|
Inapplicable
|
|
318(a)
|
|
Inapplicable
|
|
1
|
This Cross-Reference Table does not constitute part of the Indenture and shall not have any bearing on the interpretation of any of its terms or provisions.
|
TABLE OF CONTENTS
1
|
|
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
|
|
ARTICLE I
|
|
|
DEFINITIONS
|
|
|
|
|
|
|
SECTION 1.01
|
|
Definitions of Terms
|
|
|
1
|
|
|
|
|
ARTICLE II
|
|
|
DESCRIPTION, TERMS, EXECUTION,
|
|
|
REGISTRATION AND EXCHANGE OF SECURITIES
|
|
|
|
|
|
|
SECTION 2.01
|
|
Designation and Terms of Securities
|
|
|
6
|
|
|
SECTION 2.02
|
|
Form of Securities and Trustee’s Certificate
|
|
|
9
|
|
|
SECTION 2.03
|
|
Denominations; Provisions for Payment
|
|
|
9
|
|
|
SECTION 2.04
|
|
Execution and Authentications
|
|
|
11
|
|
|
SECTION 2.05
|
|
Registration of Transfer and Exchange
|
|
|
11
|
|
|
SECTION 2.06
|
|
Temporary Securities
|
|
|
12
|
|
|
SECTION 2.07
|
|
Mutilated, Destroyed, Lost or Stolen Securities
|
|
|
13
|
|
|
SECTION 2.08
|
|
Cancellation
|
|
|
14
|
|
|
SECTION 2.09
|
|
Benefits of Indenture
|
|
|
14
|
|
|
SECTION 2.10
|
|
Authenticating Agent
|
|
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14
|
|
|
SECTION 2.11
|
|
Global Securities
|
|
|
15
|
|
|
|
|
ARTICLE III
|
|
|
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
|
|
|
|
|
|
|
SECTION 3.01
|
|
Redemption
|
|
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16
|
|
|
SECTION 3.02
|
|
Notice of Redemption
|
|
|
16
|
|
|
SECTION 3.03
|
|
Payment upon Redemption
|
|
|
17
|
|
|
SECTION 3.04
|
|
Sinking Fund
|
|
|
17
|
|
|
SECTION 3.05
|
|
Satisfaction of Sinking Fund Payments with Securities
|
|
|
18
|
|
|
SECTION 3.06
|
|
Redemption of Securities for Sinking Fund
|
|
|
18
|
|
|
|
|
ARTICLE IV
|
|
|
CERTAIN COVENANTS
|
|
|
|
|
|
|
SECTION 4.01
|
|
Payment of Principal, Premium and Interest
|
|
|
18
|
|
|
SECTION 4.02
|
|
Maintenance of Office or Agency
|
|
|
19
|
|
|
SECTION 4.03
|
|
Paying Agents
|
|
|
19
|
|
|
SECTION 4.04
|
|
Notice of Default and Statement by Officers as to Default
|
|
|
21
|
|
|
SECTION 4.05
|
|
Existence
|
|
|
21
|
|
|
SECTION 4.06
|
|
Waiver of Certain Covenants
|
|
|
21
|
|
|
SECTION 4.07
|
|
Appointment to Fill Vacancy in Office of Trustee
|
|
|
21
|
|
|
SECTION 4.08
|
|
Compliance with Consolidation Provisions
|
|
|
21
|
|
|
1
|
This Table of Contents does not constitute part of this Indenture and shall not have any bearing upon the interpretation of any of its terms or provisions.
|
i
|
|
|
|
|
|
|
|
|
ARTICLE V
|
|
|
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
|
|
|
|
|
|
|
SECTION 5.01
|
|
Company to Furnish Trustee Names and Addresses of Securityholders
|
|
|
22
|
|
|
SECTION 5.02
|
|
Preservation Of Information; Communications With Securityholders
|
|
|
22
|
|
|
SECTION 5.03
|
|
Reports by the Company
|
|
|
22
|
|
|
SECTION 5.04
|
|
Reports by the Trustee
|
|
|
23
|
|
|
|
|
ARTICLE VI
|
|
|
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
|
|
|
|
|
|
SECTION 6.01
|
|
Events of Default
|
|
|
23
|
|
|
SECTION 6.02
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
26
|
|
|
SECTION 6.03
|
|
Application of Moneys Collected
|
|
|
27
|
|
|
SECTION 6.04
|
|
Limitation on Suits
|
|
|
28
|
|
|
SECTION 6.05
|
|
Rights and Remedies Cumulative; Delay or Omission Not Waiver
|
|
|
29
|
|
|
SECTION 6.06
|
|
Control by Securityholders
|
|
|
29
|
|
|
SECTION 6.07
|
|
Undertaking to Pay Costs
|
|
|
29
|
|
|
SECTION 6.08
|
|
Waiver of Past Defaults
|
|
|
30
|
|
|
|
|
ARTICLE VII
|
|
|
CONCERNING THE TRUSTEE
|
|
|
|
|
|
|
SECTION 7.01
|
|
Certain Duties and Responsibilities of Trustee
|
|
|
30
|
|
|
SECTION 7.02
|
|
Certain Rights of Trustee
|
|
|
31
|
|
|
SECTION 7.03
|
|
Trustee Not Responsible for Recitals or Issuance or Securities
|
|
|
33
|
|
|
SECTION 7.04
|
|
May Hold Securities
|
|
|
33
|
|
|
SECTION 7.05
|
|
Moneys Held in Trust
|
|
|
33
|
|
|
SECTION 7.06
|
|
Compensation and Reimbursement
|
|
|
33
|
|
|
SECTION 7.07
|
|
Reliance on Officer’s Certificate
|
|
|
34
|
|
|
SECTION 7.08
|
|
Disqualification; Conflicting Interests
|
|
|
34
|
|
|
SECTION 7.09
|
|
Corporate Trustee Required; Eligibility
|
|
|
34
|
|
|
SECTION 7.10
|
|
Resignation and Removal; Appointment of Successor
|
|
|
35
|
|
|
SECTION 7.11
|
|
Acceptance of Appointment By Successor
|
|
|
36
|
|
|
SECTION 7.12
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
37
|
|
|
SECTION 7.13
|
|
Preferential Collection of Claims against the Company
|
|
|
37
|
|
|
SECTION 7.14
|
|
Notice of Default
|
|
|
38
|
|
|
|
|
ARTICLE VIII
|
|
|
CONCERNING THE SECURITYHOLDERS
|
|
|
|
|
|
|
SECTION 8.01
|
|
Evidence of Action by Securityholders
|
|
|
38
|
|
|
SECTION 8.02
|
|
Proof of Execution by Securityholders
|
|
|
39
|
|
|
SECTION 8.03
|
|
Who May be Deemed Owners
|
|
|
39
|
|
|
SECTION 8.04
|
|
Certain Securities Owned by Company Disregarded
|
|
|
39
|
|
|
SECTION 8.05
|
|
Actions Binding on Future Securityholders
|
|
|
40
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
ARTICLE IX
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
SECTION 9.01
|
|
Supplemental Indentures without the Consent of Securityholders
|
|
|
40
|
|
|
SECTION 9.02
|
|
Supplemental Indentures with Consent of Securityholders
|
|
|
42
|
|
|
SECTION 9.03
|
|
Effect of Supplemental Indentures
|
|
|
42
|
|
|
SECTION 9.04
|
|
Securities Affected by Supplemental Indentures
|
|
|
43
|
|
|
SECTION 9.05
|
|
Execution of Supplemental Indentures
|
|
|
43
|
|
|
|
|
ARTICLE X
|
|
|
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
|
|
|
|
|
|
|
SECTION 10.01
|
|
When the Company May Consolidate, Merge, Etc
|
|
|
43
|
|
|
|
|
ARTICLE XI
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
SECTION 11.01
|
|
Satisfaction and Discharge of Indenture
|
|
|
44
|
|
|
SECTION 11.02
|
|
Discharge of Obligations
|
|
|
45
|
|
|
SECTION 11.03
|
|
Deposited Moneys to be Held in Trust
|
|
|
45
|
|
|
SECTION 11.04
|
|
Payment of Moneys Held by Paying Agents
|
|
|
45
|
|
|
SECTION 11.05
|
|
Repayment to Company
|
|
|
45
|
|
|
|
|
ARTICLE XII
|
|
|
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
|
|
|
|
|
|
|
SECTION 12.01
|
|
No Recourse
|
|
|
46
|
|
|
|
|
ARTICLE XIII
|
|
|
DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
|
|
|
|
SECTION 13.01
|
|
Company’s Option to Effect Defeasance or Covenant Defeasance
|
|
|
46
|
|
|
SECTION 13.02
|
|
Defeasance and Discharge
|
|
|
46
|
|
|
SECTION 13.03
|
|
Covenant Defeasance
|
|
|
47
|
|
|
SECTION 13.04
|
|
Conditions to Defeasance or Covenant Defeasance
|
|
|
47
|
|
|
SECTION 13.05
|
|
Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions
|
|
|
49
|
|
|
SECTION 13.06
|
|
Reinstatement
|
|
|
49
|
|
|
|
|
ARTICLE XIV
|
|
|
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
|
SECTION 14.01
|
|
Effect on Successors and Assigns
|
|
|
50
|
|
|
SECTION 14.02
|
|
Actions by Successor
|
|
|
50
|
|
|
SECTION 14.03
|
|
Surrender of Company Powers
|
|
|
50
|
|
|
SECTION 14.04
|
|
Notices
|
|
|
50
|
|
|
SECTION 14.05
|
|
Governing Law
|
|
|
50
|
|
|
SECTION 14.06
|
|
Treatment of Securities as Debt
|
|
|
51
|
|
|
SECTION 14.07
|
|
Compliance Certificates and Opinions
|
|
|
51
|
|
|
SECTION 14.08
|
|
Payments on Business Days
|
|
|
51
|
|
|
SECTION 14.09
|
|
Conflict with Trust Indenture Act
|
|
|
51
|
|
|
SECTION 14.10
|
|
Counterparts
|
|
|
51
|
|
|
SECTION 14.11
|
|
Separability
|
|
|
52
|
|
|
SECTION 14.12
|
|
Assignment
|
|
|
52
|
|
iii
|
|
|
|
|
|
|
|
|
SECTION 14.13
|
|
Acknowledgment of Rights
|
|
|
52
|
|
|
SECTION 14.14
|
|
USA PATRIOT Act
|
|
|
52
|
|
|
SECTION 14.15
|
|
Force Majeure
|
|
|
53
|
|
|
SECTION 14.16
|
|
Waiver of Jury Trial
|
|
|
53
|
|
iv
INDENTURE, dated as of January 12, 2018, between Athene Holding Ltd., a Bermuda exempted company
limited by shares (the “Company”), and U.S. Bank National Association, a national banking association, as trustee (the “Trustee”):
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the execution and delivery of this Indenture to provide for the
issuance of unsecured debt securities, debentures, notes, bonds, or other evidences of indebtedness (hereinafter referred to as the “Securities”), in an unlimited aggregate principal amount to be issued from time to time in one or more
series, as provided in this Indenture.
WHEREAS, to provide the terms and conditions upon which the Securities are to be authenticated,
issued and delivered, the Company has duly authorized the execution of this Indenture; and
WHEREAS, all things necessary to make this
Indenture a valid agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, in consideration of the
premises and the purchase of the Securities by the holders thereof, it is mutually covenanted and agreed as follows for the equal and ratable benefit of the holders of Securities:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions of Terms.
The terms defined in this Section (except as in this Indenture 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 and shall include the plural as well as the singular. All other terms used in this Indenture that are defined in the
Trust Indenture Act of 1939, as amended, or that are by reference in such Act defined in the Securities Act of 1933, as amended (except as herein otherwise expressly provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of the execution of this instrument.
“Affiliate” of any specified Person means any other Person, directly or indirectly, controlling or controlled by or under direct or
indirect common control with such specified Person. When used with respect to any Person, “control” means the power, directly or indirectly, to direct or cause the direction of the management and policies of such Person, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” and “under common control with” have meanings correlative to the foregoing.
“Authenticating Agent” means an authenticating agent with respect to all or any of the series of Securities appointed with respect
to all or any series of the Securities by the Trustee pursuant to Section 2.10.
1
“Bankruptcy Law” means Title 11, U.S. Code, or any applicable federal or
state bankruptcy, insolvency, reorganization or other law for the relief of debtors.
“Board of Directors” means the Board of
Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” means a copy of a resolution
certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in full force and effect on the date of such certification.
“Business Day” means, with respect to any series of Securities, any day other than (i) a Saturday or Sunday, (ii) a day on
which the Federal Reserve Bank of New York is authorized or required by law or executive order to close or be closed or (iii) a day on which commercial banks in Bermuda are authorized or required by law to close or be closed.
“Company” means Athene Holding Ltd., a Bermuda exempted company limited by shares, and, subject to the provisions of Article Ten,
shall also include its successors and assigns.
“Commission” means the Securities and Exchange Commission, from time to time
constituted, created under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
“Corporate Trust Office” means the office of the
Trustee at which, at any particular time, its corporate trust business shall be principally administered, which office at the date hereof is located at U.S. Bank National Association, Global Corporate Trust Services, 633 West Fifth Street, Los
Angeles, California 90071, Attention: B. Scarbrough (Athene).
“Custodian” means any receiver, trustee, assignee, liquidator,
sequestrator, custodian or similar official under any Bankruptcy Law.
“default” means any event, act or condition that with
notice or lapse of time, or both, would constitute an Event of Default.
“Depositary” means, with respect to Securities of any
series, for which the Company shall determine that such Securities will be issued as a Global Security, The Depository Trust Company, New York, New York, another clearing agency, or any successor registered as a clearing agency under the Exchange
Act, or other applicable statute or regulation, which, in each case, shall be designated by the Company pursuant to either Section 2.01 or Section 2.11.
“Event of Default” means, with respect to Securities of a particular series any event specified in Section 6.01, continued for
the period of time, if any, therein designated.
“Global Security” means, with respect to any series of Securities, a Security
executed by the Company and authenticated and delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction, all in accordance with this Indenture, which shall be registered in the name of the Depositary or its nominee.
2
“Governmental Obligations” means securities that are (i) direct obligations of the
United States of America, or the securities of another government, governments or a confederation or association of governments, in which the United States of America’s, or such government, governments or confederation or association of
governments’ full faith and credit is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America, or another government, governments or a confederation or
association of governments, is unconditionally guaranteed as a full faith and credit obligation by the United States of America, or such government, governments or confederation or association of governments, that, in either case, are not callable
or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with respect to any such Governmental
Obligation or a specific payment of principal of or interest on any such Governmental Obligation held by such custodian for the account of the holder of such depositary receipt; provided, however, that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Governmental Obligation or the specific payment of principal of or interest on the
Governmental Obligation evidenced by such depositary receipt.
“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.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, the provisions of the Trust Indenture Act that are deemed to be a part of
and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 2.01.
“Interest Payment Date,” when used with respect to any Security, means the Stated Maturity of an installment of interest on a
Security of a particular series.
“Investment Company Act” means the Investment Company Act of 1940 and any statute successor
thereto, in each case as amended from time to time.
“Officer’s Certificate” means a certificate signed by the Chief
Executive Officer, the Chief Financial Officer, the President, an Executive Vice President, a Senior Vice President, the Treasurer, the Assistant Treasurer, the Principal Accounting Officer, the Controller or the Secretary of the Company that is
delivered to the Trustee in accordance with the terms hereof. Each such certificate shall include the statements provided for in Section 14.07, if and to the extent required by the provisions thereof.
“Opinion of Counsel” means an opinion in writing of legal counsel, who may be an employee of or counsel for the Company, that is
delivered to the Trustee in accordance with the terms hereof. Each such opinion shall include the statements provided for in Section 14.07, if and to the extent required by the provisions thereof.
3
“Ordinary Securities” means undivided beneficial interests in the assets of the Company
which rank pari passu with Preferred Securities issued by the Company; provided, however, that upon the occurrence of an Event of Default, the rights of holders of Common Securities to payment in respect of distributions and payments upon
liquidation, redemption and otherwise are subordinated to the rights of holders of Preferred Securities.
“Original Issue Discount
Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 6.01(b).
“Outstanding,” when used with reference to Securities of any series, means, subject to the provisions of Section 8.04, as of
any particular time, all Securities of that series theretofore authenticated and delivered by the Trustee under this Indenture, except (a) Securities theretofore canceled by the Trustee or any Paying Agent, or delivered to the Trustee or any
Paying Agent for cancellation or that have previously been canceled; (b) Securities or portions thereof for the payment or redemption of which moneys or Governmental Obligations in the necessary amount shall have been deposited in trust with
the Trustee or with any Paying Agent (other than the Company) or shall have been set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent); provided, however, that if such Securities or portions of such
Securities are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as provided in Article Three, or provision satisfactory to the Trustee shall have been made for giving such notice; (c) Securities in
lieu of or in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section 2.07; and (d) Securities as to which Defeasance (as defined in Section 13.02) has been effected
pursuant to Section 13.02, provided, however, that in determining whether the holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent,
waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date
upon acceleration of the maturity thereof to such date pursuant to Section 6.01(b), (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which
shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 2.01, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 2.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A)
or (B) above, of the amount determined as provided in such Clause), and (D) Securities beneficially owned by the Company or any other obligor upon such Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a
Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
4
“Paying Agent” means any Person authorized by the Company to pay the principal of or
any premium or interest on any Securities on behalf of the Company.
“Person” means any individual, corporation, partnership,
joint- venture, joint- stock company, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of any series, means the place or places where the principal of and any
premium and interest on the Securities of that series are payable as specified as contemplated by Section 2.01.
“Predecessor
Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered
under Section 2.07 in lieu of a lost, destroyed or stolen Security shall be deemed to evidence the same debt as the lost, destroyed or stolen Security.
“Preferred Securities” means undivided beneficial interests in the assets of the Company which rank pari passu with Ordinary
Securities issued by the Company; provided, however, that upon the occurrence of an Event of Default, the rights of holders of Ordinary Securities to payment in respect of distributions and payments upon liquidation, redemption and otherwise are
subordinated to the rights of holders of Preferred Securities.
“Redemption Date,” when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used with respect
to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Responsible
Officer,” when used with respect to the Trustee, means the President, any Vice-President, the Secretary, the Treasurer, any trust officer, any corporate trust officer or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the Persons who at the time shall be such officers, respectively, or to whom any corporate trust matter relating to this Indenture is referred because of his or her knowledge of and familiarity with
the particular subject.
“Securities” has the meaning stated in the preamble of this Indenture and more particularly means any
Securities authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
“Securityholder,” “holder of Securities,”
“registered holder,” or other similar term, means the Person or Persons in whose name or names a particular Security shall be registered on the books of the Company kept for that purpose in accordance with the terms of this Indenture.
5
“Stated Maturity,” when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person, (i) any corporation at least a majority of whose outstanding Voting Stock shall
at the time be owned, directly or indirectly, by such Person or by one or more of its Subsidiaries or by such Person and one or more of its Subsidiaries, (ii) any general partnership, joint venture or similar entity, at least a majority of
whose outstanding partnership or similar interests shall at the time be owned by such Person, or by one or more of its Subsidiaries, or by such Person and one or more of its Subsidiaries and (iii) any limited partnership of which such Person or
any of its Subsidiaries is a general partner.
“Trustee” means U.S. Bank National Association and, subject to the provisions of
Article Seven, shall also include its successors and assigns and, if at any time there is more than one Person acting in such capacity hereunder, “Trustee” shall mean each such Person. The term “Trustee” as used with respect to a
particular series of the Securities shall mean the trustee with respect to that series.
“Trust Indenture Act” means the Trust
Indenture Act of 1939, as amended, subject to the provisions of Sections 9.01, 9.02 and 10.01, as in effect at the date of execution of this instrument.
“Voting Stock,” as applied to stock of any Person, means shares, interests, participations or other equivalents in the equity
interest (however designated) in such Person having ordinary voting power for the election of a majority of the directors (or the equivalent) of such Person, other than shares, interests, participations or other equivalents having such power only by
reason of the occurrence of a contingency.
“Yield to Maturity” means the yield to maturity on a series of securities calculated
at the time of issuance of such series or, if applicable, of the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE II
DESCRIPTION, TERMS,
EXECUTION,
REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01 Designation and Terms of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is
unlimited. The Securities may be issued in one or more series up to the aggregate principal amount of Securities of that series from time to time authorized by or pursuant to a Board Resolution of the Company or pursuant to one or more indentures
supplemental hereto. Prior to the initial issuance of Securities of any series, there shall be established in or pursuant to a Board Resolution of the Company, and set forth in an Officer’s Certificate of the Company, or established in one or
more indentures supplemental hereto:
(1) the title of the Security of the series (which shall
distinguish the Securities of the series from all other Securities) and whether such Securities shall be senior debt Securities or subordinated debt Securities;
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(2) any limit upon the aggregate principal amount of the
Securities of that series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series);
(3) the price or prices at which the Company will sell the Securities;
(4) the Stated Maturity of the Securities;
(5) the rate or rates at which the Securities of the series shall bear interest or the manner of
calculation of such rate or rates, if any;
(6) the date or dates from which such interest shall
accrue, the Interest Payment Dates on which such interest will be payable or the manner of determination of such Interest Payment Dates and the record date for the determination of holders to whom interest is payable on any such Interest Payment
Dates;
(7) the right, if any, to extend the interest payment periods, including the maximum
consecutive period during which interest payment periods may be extended;
(8) whether the amount of
principal of or any premium or interest on any Securities of the series may be determined with reference to any index, formula, or other method, such as one or more currencies, commodities, equity indices or other indices, and the manner in which
such amounts shall be determined;
(9) the place or places where the principal of and any premium
and interest on any Securities of the series shall be payable;
(10) additional amounts, if any,
that the Company is obligated to pay;
(11) the period or periods within which and the price or
prices at which the Securities of the series may be redeemed, in whole or in part, at the option of the Company;
(12) the obligation, if any, of the Company to redeem, repay or purchase Securities of the series
pursuant to any sinking fund or analogous provisions (including payments made in cash in participation of future sinking fund obligations) or at the option of a holder thereof and the period or periods within which, the price or prices at which, and
the terms and conditions upon which, Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(13) if other than denominations of one thousand U.S. dollars ($1,000) or any integral multiple
thereof, the denominations in which the Securities of the series shall be issuable;
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(14) if other than the full principal amount thereof, the
portion or, methods of determining the portion, of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.01;
(15) if other than the currency of the United States of America, the currency, currencies or currency
units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for purposes
of the definition of “Outstanding” in Section 1.01;
(16) provisions granting special
rights to holders of the Securities upon the occurrence of specific events;
(17) any deletions
from, modifications of or additions to the Events of Default or the Company’s covenants provided for with respect to the Securities of the series;
(18) if applicable, that the Securities of the series, in whole or any specified part, shall be
defeasible pursuant to Section 13.02 or Section 13.03 or both such Sections and, if other than by a Board Resolution, the manner in which any election by the Company to defease such Securities shall be evidenced;
(19) whether the Securities will be convertible into common shares or other securities or property of
the Company or a third party and, if so, the terms and conditions upon which such Securities will be so convertible, including the conversion price and the conversion period;
(20) whether the Securities are issuable as a Global Security and, in such case, the identity for the
Depositary for such series and the terms and conditions upon which Global Securities may be exchanged for certificated debt securities;
(21) if applicable, a discussion of certain material tax implications of the Securities of the series;
(22) any change in the right of the Trustee or the requisite holders of such Securities to declare
the principal amount thereof due and payable pursuant to Section 6.01;
(23) any trustees,
authenticating or Paying Agents, transfer agents or registrars or other agents with respect to the Securities; and
(24) any other terms of the series (which terms shall not be inconsistent with the provisions of this
Indenture, except as permitted by Section 9.01(10)), but which may modify or delete any provision of this Indenture with respect to such series, provided that no such term may modify or delete any provision hereof if imposed by the Trust
Indenture Act, and provided, further that any modification or deletion of the rights, duties or immunities of the Trustee hereunder shall have been consented to in writing by the Trustee).
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All Securities of any one series shall be substantially identical except as to denomination and
except as may otherwise be provided in or pursuant to any such Board Resolution or in any indentures supplemental hereto.
If any of the
terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officer’s Certificate of the Company setting forth the terms of the series.
Securities of
any particular series may be issued at various times, with different dates on which the principal or any installment of principal is payable, with different rates of interest, if any, or different methods by which rates of interest may be
determined, with different dates on which such interest may be payable and with different redemption dates.
SECTION
2.02 Form of Securities and Trustee’s Certificate.
The Securities of any series and the Trustee’s
certificate of authentication to be borne by such Securities shall be substantially of the tenor and purport as set forth in one or more indentures supplemental hereto or as provided in a Board Resolution of the Company and as set forth in an
Officer’s Certificate of the Company and may have such letters, numbers or other marks of identification or designation and such legends or endorsements printed, lithographed or engraved thereon as the Company may deem appropriate and as are
not inconsistent with the provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which Securities of that series may be
listed, or to conform to usage.
SECTION 2.03 Denominations; Provisions for Payment.
The Securities shall be issuable as registered Securities and in the minimum denominations of one thousand U.S. dollars ($1,000) or any
integral multiple in excess thereof, subject to Section 2.01(13). The Securities of a particular series shall bear interest payable on the dates and at the rate specified with respect to that series. Unless otherwise provided pursuant to
Section 2.01, the principal of and the interest on the Securities of any series, as well as any premium thereon in case of redemption thereof prior to maturity, shall be payable in the coin or currency of the United States of America that at
the time is legal tender for public and private debt, at the office or agency of the Company maintained for that purpose in the contiguous United States. Each Security shall be dated the date of its authentication.
The interest installment on any Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date for
Securities of that series, shall be paid to the Person in whose name said Security (or one or more Predecessor Securities) is registered at the close of business on the regular record date for such interest installment. In the event that any
Security of a particular series or portion thereof is called for redemption and the redemption date is subsequent to a regular record date with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such Security
will be paid upon presentation and surrender of such Security as provided in Section 3.03.
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Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 2.01, any interest on any Security that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date for Securities of the same series (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 shall be paid by the Company, at its election, as provided in clause (1) or
clause (2) below:
(1) The Company may make payment of any Defaulted Interest on Securities to
the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business on a special record date for the payment of such Defaulted Interest, which shall be fixed in the following manner: the
Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Security and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal
to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall fix a special record date for the payment of such Defaulted Interest which shall not be more than 15 nor 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 mailed, first class postage prepaid, to each Securityholder at his or her address as it appears in the Security
Register (as hereinafter defined), 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 mailed as aforesaid, such Defaulted Interest
shall be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered on such special record date and shall be no longer payable pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on any Securities in any other lawful manner
not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant
to this clause, such manner of payment shall be deemed practicable by the Trustee.
Unless otherwise set forth in a Board Resolution of
the Company or one or more indentures supplemental hereto establishing the terms of any series of Securities pursuant to Section 2.01 hereof, the term “regular record date” as used in this Section with respect to a series of
Securities with respect to any Interest Payment Date for such series shall mean either the fifteenth day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof
shall occur, if such Interest Payment Date is the first day of a month, or the last day of the month immediately preceding the month in which an Interest Payment Date established for such series pursuant to Section 2.01 hereof shall occur, if
such Interest Payment Date is the fifteenth day of a month, whether or not such date is a Business Day.
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Subject to the foregoing provisions of this Section, each Security of a series delivered under
this Indenture upon transfer of or in exchange for or in lieu of any other Security of such series shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other Security.
SECTION 2.04 Execution and Authentications.
The Securities shall be signed on behalf of the Company by its President, or one of its Vice Presidents, or its Treasurer, or one of its
Assistant Treasurers, or its Secretary, or one of its Assistant Secretaries. Signatures may be in the form of a manual or facsimile signature. The Company may use the facsimile signature of any Person who shall have been a President or Vice
President or Treasurer or Assistant Treasurer thereof, or of any Person who shall have been a Secretary or Assistant Secretary thereof, notwithstanding the fact that at the time the Securities shall be authenticated and delivered or disposed of such
Person shall have ceased to be the President or a Vice President, or the Secretary or an Assistant Secretary, of the Company. The Securities may contain such notations, legends or endorsements required by law, stock exchange rule or usage. Each
Security shall be dated the date of its authentication by the Trustee.
A Security shall not be valid until authenticated manually by an
authorized signatory of the Trustee, or by an Authenticating Agent. Such signature shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of
this Indenture.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities
of any series executed by the Company to the Trustee for authentication, together with a written order of the Company for the authentication and delivery of such Securities, signed by its President or any Vice President and its Secretary or any
Assistant Secretary, and the Trustee in accordance with such written order shall authenticate and deliver such Securities.
In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 7.01) shall be fully protected in relying upon,
an Opinion of Counsel stating that the form and terms thereof have been established in conformity with the provisions of this Indenture.
The Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
SECTION 2.05 Registration of Transfer and Exchange.
(a) Securities of any series may be exchanged upon presentation thereof at the office or agency of the Company
designated for such purpose in the contiguous United States, for other Securities of such series of authorized denominations, and for a like aggregate principal amount,
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upon payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, all as provided in this Section. In respect of any Securities so surrendered for exchange, the
Company shall execute, the Trustee shall authenticate and such office or agency shall deliver in exchange therefor the Security or Securities of the same series that the Securityholder making the exchange shall be entitled to receive, bearing
numbers not contemporaneously outstanding.
(b) The Company shall keep, or cause to be kept, at its office or
agency designated for such purpose in the contiguous United States, or such other location designated by the Company a register or registers (herein referred to as the “Security Register”) in which, subject to such reasonable
regulations as it may prescribe, the Company shall register the Securities and the transfers of Securities as in this Article provided and which at all reasonable times shall be open for inspection by the Trustee. The registrar for the purpose of
registering Securities and transfer of Securities as herein provided shall be appointed as authorized by Board Resolution (the “Security Registrar”).
Upon surrender for transfer of any Security at the office or agency of the Company designated for such purpose, the Company shall execute, the
Trustee shall authenticate and such office or agency shall deliver in the name of the transferee or transferees a new Security or Securities of the same series as the Security presented for a like aggregate principal amount.
All Securities presented or surrendered for exchange or registration of transfer, as provided in this Section, shall be accompanied (if so
required by the Company or the Security Registrar) by a written instrument or instruments of transfer, in form satisfactory to the Company or the Security Registrar, duly executed by the registered holder or by such holder’s duly authorized
attorney in writing.
(c) No service charge shall be made for any exchange or registration of transfer of
Securities, or issue of new Securities in case of partial redemption of any series, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge in relation thereto, other than exchanges pursuant to
Section 2.06, the second paragraph of Section 3.03 and Section 9.04 not involving any transfer.
(d) The Company shall not be required (i) to issue, exchange or register the transfer of any Securities during a
period beginning at the opening of business 15 days before the day of the mailing of a notice of redemption of less than all the Outstanding Securities of the same series and ending at the close of business on the day of such mailing, nor
(ii) to register the transfer of or exchange any Securities of any series or portions thereof called for redemption. The provisions of this Section 2.05 are, with respect to any Global Security, subject to Section 2.11 hereof.
SECTION 2.06 Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and the Trustee shall authenticate and deliver,
temporary Securities (printed, lithographed or typewritten) of any authorized denomination. Such temporary Securities shall be substantially in the form of the definitive Securities in lieu of which they are issued, but with such omissions,
insertions and variations as may be appropriate for temporary Securities, all as may be
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determined by the Company. Every temporary Security of any series shall be executed by the Company and be authenticated by the Trustee upon the same conditions and in substantially the same
manner, and with like effect, as the definitive Securities of such series. Without unnecessary delay the Company will execute and will furnish definitive Securities of such series and thereupon any or all temporary Securities of such series may be
surrendered in exchange therefor (without charge to the holders), at the office or agency of the Company designated for the purpose in the contiguous United States, and the Trustee shall authenticate and such office or agency shall deliver in
exchange for such temporary Securities an equal aggregate principal amount of definitive Securities of such series, unless the Company advises the Trustee to the effect that definitive Securities need not be executed and furnished until further
notice from the Company. Until so exchanged, the temporary Securities of such series shall be entitled to the same benefits under this Indenture as definitive Securities of such series authenticated and delivered hereunder.
SECTION 2.07 Mutilated, Destroyed, Lost or Stolen Securities.
In case any temporary or definitive Security shall become mutilated or be destroyed, lost or stolen, the Company (subject to the next
succeeding sentence) shall execute, and upon the Company’s request the Trustee (subject as aforesaid) shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated Security, or in lieu of and in substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substituted Security shall furnish to the Company and 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 the Trustee evidence to their satisfaction of the destruction, loss or theft of the
applicant’s Security and of the ownership thereof. The Trustee may authenticate any such substituted Security and deliver the same upon the written request or authorization of any officer of the Company. Upon the issuance of any substituted
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 (including the fees and expenses of the Trustee) connected therewith. In
case any Security that has matured or is about to mature shall become mutilated or be destroyed, lost or stolen, the Company may, instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in
the case of a mutilated Security) if the applicant for such payment shall furnish to the Company and the Trustee such security or indemnity as they may require to save them harmless, and, in case of destruction, loss or theft, evidence to the
satisfaction of the Company and the Trustee of the destruction, loss or theft of such Security and of the ownership thereof.
Every
replacement Security issued pursuant to the provisions of this Section shall constitute an additional contractual obligation of the Company whether or not the mutilated, destroyed, lost or stolen Security shall be found at any time, or be
enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of the same series duly issued hereunder. All 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 Securities, and shall preclude (to the extent lawful) any and all other rights or remedies, notwithstanding any
law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
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SECTION 2.08 Cancellation.
All Securities surrendered for the purpose of payment, redemption, exchange or registration of transfer shall, if surrendered to the Company or
any Paying Agent, be delivered to the Trustee for cancellation, or, if surrendered to the Trustee, shall be canceled by it, and no Securities shall be issued in lieu thereof except as expressly required or permitted by any of the provisions of this
Indenture. On request of the Company at the time of such surrender, the Trustee shall deliver to the Company written confirmation of such cancellation. The Trustee may dispose of such Securities in accordance with its standard procedures. If the
Company shall otherwise acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for
cancellation.
SECTION 2.09 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give or be construed to give to any Person, other than the parties
hereto and the holders of the 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 for the
sole benefit of the parties hereto and of the holders of the Securities.
SECTION 2.10 Authenticating Agent.
So long as any of the Securities of any series remain Outstanding there may be an Authenticating Agent for any or all such series of Securities
which the Trustee shall have the right to appoint. Said Authenticating Agent shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, transfer or partial redemption thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. All references in this Indenture to the authentication of Securities by the Trustee
shall be deemed to include authentication by an Authenticating Agent for such series. Each Authenticating Agent shall be acceptable to the Company and shall be a corporation that has a combined capital and surplus, as most recently reported or
determined by it, sufficient under the laws of any jurisdiction under which it is organized or in which it is doing business to conduct a trust business, and that is otherwise authorized under such laws to conduct such business and is subject to
supervision or examination by federal or state authorities. If at any time any Authenticating Agent shall cease to be eligible in accordance with these provisions, it shall resign immediately.
Any Authenticating Agent may at any time resign by giving written notice of resignation to the Trustee and to the Company. The Trustee may at
any time (and upon request by the Company shall) terminate the agency of any Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon resignation, termination or cessation of eligibility of
any Authenticating Agent, the Trustee may appoint an eligible
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successor Authenticating Agent acceptable to the Company. Any successor Authenticating Agent, upon acceptance of its appointment hereunder, shall become vested with all the rights, powers and
duties of its predecessor hereunder as if originally named as an Authenticating Agent pursuant hereto.
SECTION
2.11 Global Securities.
(a) If the Company shall establish pursuant to Section 2.01
that the Securities of a particular series are to be issued as a Global Security, then the Company shall execute and the Trustee shall, in accordance with Section 2.04, authenticate and deliver, one or more Global Securities that (i) shall
represent, and shall be denominated in an amount or amounts equal to the aggregate principal amount of, all of the Outstanding Securities of such series, (ii) shall be registered in the name of the Depositary or its nominee, (iii) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary’s instruction and (iv) shall bear a legend substantially to the following effect: “Except as otherwise provided in Section 2.11 of this Indenture, this
Security may be transferred, in whole but not in part, only to another nominee of the Depositary or to a successor Depositary or to a nominee of such successor Depositary.”
(b) Notwithstanding the provisions of Section 2.05, any Global Security of a series may be transferred, in whole
but not in part and in the manner provided in Section 2.05, only to another nominee of the Depositary for such series, or to a successor Depositary for such series selected or approved by the Company or to a nominee of such successor
Depositary.
(c) If at any time the Depositary for a series of the Securities notifies the Company that it is
unwilling or unable to continue as Depositary for such series or if at any time the Depositary for such series shall no longer be registered or in good standing under the Exchange Act, or other applicable statute or regulation, and a successor
Depositary for such series is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, this Section 2.11 shall no longer be applicable to the Securities of
such series and the Company will execute, and subject to Section 2.05, the Trustee will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security or Global Securities of such series in exchange for such Global Security or Global Securities. In addition, the Company may at any time determine that the Securities of any series
shall no longer be represented by a Global Security and that the provisions of this Section 2.11 shall no longer apply to the Securities of such series. In such event the Company will execute and subject to Section 2.05, the Trustee, upon
receipt of an Officer’s Certificate evidencing such determination by the Company, will authenticate and deliver the Securities of such series in definitive registered form without coupons, in authorized denominations, and in an aggregate
principal amount equal to the principal amount of the Global Security or Global Securities of such series in exchange for such Global Security or Global Securities. Upon the exchange of any Global Security for such Securities in definitive
registered form without coupons, in authorized denominations, such Global Security shall be canceled by the Trustee. Such Securities in definitive registered form issued in exchange for any Global Security pursuant to this Section 2.11(c) shall
be registered in such names and in such authorized denominations as the Depositary, pursuant to instructions from its direct or indirect participants or otherwise, shall instruct the Trustee. The Trustee shall deliver such Securities to the
Depositary for delivery to the Persons in whose names such Securities are so registered.
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ARTICLE III
REDEMPTION OF SECURITIES AND SINKING FUND PROVISIONS
SECTION 3.01 Redemption.
The Company may redeem the Securities of any series issued hereunder on and after the dates and in accordance with the terms established for
such series pursuant to Section 2.01 hereof.
SECTION 3.02 Notice of Redemption.
(a) In case the Company shall desire to exercise such right to redeem all or, as the case may be, a portion of the
Securities of any series in accordance with the right reserved so to do, the Company shall, or shall cause the Trustee to, give notice of such redemption to holders of the Securities of such series to be redeemed by mailing, first class postage
prepaid, a notice of such redemption not less than 15 days and not more than 90 days before the Redemption Date of that series to such holders at their last addresses as they shall appear upon the Security Register unless a shorter period
is specified in the Securities to be redeemed. Any notice that is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the registered holder receives the notice. In any case, failure duly to
give such notice to the holder of any Security of any series designated for redemption in whole or in part, or any defect in the notice, shall not affect the validity of the proceedings for the redemption of any other Securities of such series or
any other series. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officer’s Certificate evidencing compliance with any such restriction.
Each such notice of redemption shall specify the Redemption
Date and the Redemption Price at which Securities of that series are to be redeemed, and shall state that payment of the Redemption Price of such Securities to be redeemed will be made at the office or agency of the Company in the contiguous United
States, upon presentation and surrender of such Securities, that interest accrued to the Redemption Date will be paid as specified in said notice, that from and after said date interest will cease to accrue and that the redemption is for a sinking
fund, if such is the case. If less than all the Securities of a series are to be redeemed, the notice to the holders of Securities of that series to be redeemed in whole or in part shall specify the particular Securities to be so redeemed. In case
any Security is to be redeemed in part only, the notice that relates to such Security shall state the portion of the principal amount thereof to be redeemed, and shall state that on and after the redemption date, upon surrender of such Security, a
new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
(b) If less than all the Securities of a series are to be redeemed, the Company shall give the Trustee at least
30 days’ notice in advance of the Redemption Date as to the aggregate
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principal amount of Securities of the series to be redeemed, and thereupon the Trustee shall select, by lot or in such other manner as it shall deem appropriate and fair in its discretion (and
which, if the Securities are issued as Global Securities, shall be in compliance with the procedures of the Depositary) and that may provide for the selection of a portion or portions (equal to one thousand U.S. dollars ($1,000) or any integral
multiple thereof) of the principal amount of such Securities of a denomination larger than $1,000, the Securities to be redeemed and shall thereafter promptly notify the Company in writing of the numbers of the Securities to be redeemed, in whole or
in part.
The Company may, if and whenever it shall so elect, by delivery of instructions signed on its behalf by its President, any Vice
President, its Secretary or any Assistant Secretary instruct the Trustee or any Paying Agent to call all or any part of the Securities of a particular series for redemption and to give notice of redemption in the manner set forth in this Section,
such notice to be in the name of the Company or its own name as the Trustee or such Paying Agent may deem advisable. In any case in which notice of redemption is to be given by the Trustee or any such Paying Agent, the Company shall deliver or cause
to be delivered to, or permit to remain with, the Trustee or such Paying Agent, as the case may be, such Security Register, transfer books or other records, or suitable copies or extracts therefrom, sufficient to enable the Trustee or such Paying
Agent to give any notice by mail that may be required under the provisions of this Section.
SECTION 3.03 Payment
upon Redemption.
(a) If the giving of notice of redemption shall have been completed as above provided, the
Securities or portions of Securities of the series to be redeemed specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable Redemption Price, together with interest accrued to the
Redemption Date and interest on such Securities or portions of Securities shall cease to accrue on and after the Redemption Date, unless the Company shall default in the payment of such Redemption Price and accrued interest with respect to any such
Security or portion thereof. On presentation and surrender of such Securities on or after the Redemption Date at the place of payment specified in the notice, said Securities shall be paid and redeemed at the applicable Redemption Price for such
series, together with interest accrued thereon to the Redemption Date (but if the Redemption Date is an interest payment date, the interest installment payable on such date shall be payable to the registered holder at the close of business on the
applicable record date pursuant to Section 2.03).
(b) Upon presentation of any Security of such series that
is to be redeemed in part only, the Company shall execute and the Trustee shall authenticate and the office or agency where the Security is presented shall deliver to the holder thereof, at the expense of the Company, a new Security of the same
series of authorized denominations in principal amount equal to the unredeemed portion of the Security so presented.
SECTION
3.04 Sinking Fund.
The provisions of Sections 3.04, 3.05 and 3.06 shall be applicable to any sinking fund for
the retirement of Securities of a series, except as otherwise specified as contemplated by Section 2.01 for Securities of such series.
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The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional sinking fund
payment”. If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 3.05. Each sinking fund payment shall be applied to the redemption of
Securities of any series as provided for by the terms of Securities of such series.
SECTION 3.05 Satisfaction of
Sinking Fund Payments with Securities.
The Company (i) may deliver Outstanding Securities of a series (other than any Securities
previously called for redemption) and (ii) may apply as a credit Securities of a series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to the Securities of such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series, provided that such Securities have not been previously so credited. Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION
3.06 Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date
for any series of Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for that series pursuant to the terms of the series, the portion thereof, if any, that
is to be satisfied by delivering and crediting Securities of that series pursuant to Section 3.05 and the basis for such credit and will, together with such Officer’s Certificate, deliver to the Trustee any Securities to be so delivered.
Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02 and cause notice of the redemption thereof
to be given in the name of and at the expense of the Company in the manner provided in Section 3.02. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Section 3.03.
ARTICLE IV
CERTAIN COVENANTS
SECTION
4.01 Payment of Principal, Premium and Interest.
(a) The Company shall pay or cause to be
paid the principal of and premium, if any, and interest on the Securities on or prior to the dates and in the manner provided in such Securities or pursuant to this Indenture. An installment of principal, premium, if any, or interest shall be
considered paid on the applicable due date if on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, money sufficient to pay all of such installment
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then due. Principal of and premium, if any, and interest on the Securities will be payable at the office of the Paying Agent, or, at the option of the Company, by check mailed to the address of
the Person entitled thereto.
SECTION 4.02 Maintenance of Office or Agency.
So long as any series of the Securities remain Outstanding, the Company agrees to maintain an office or agency in the contiguous United States,
with respect to each such series and at such other location or locations as may be designated as provided in this Section 4.02, where (i) Securities of that series may be presented for payment, (ii) Securities of that series may be
presented as hereinabove authorized for registration of transfer and exchange, and (iii) notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be given or served, such designation to
continue with respect to such office or agency until the Company shall, by written notice signed by its President, Vice President or Secretary or Assistant Secretary and delivered to the trustee, designate some other office or agency for such
purposes or any of them. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, notices and demands; provided that the Corporate Trust Office of the Trustee shall not be an office or agency of the
Company for the purpose of service of legal process against the Company.
The Company may also from time to time designate one or more
other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
SECTION 4.03 Paying Agents.
(a) If the Company shall appoint one or more Paying Agents for all or any series of the Securities, other than the
Trustee, the Company will cause each such Paying Agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section:
(1) that it will hold all sums held by it as such agent for the payment of the principal of and premium,
if any or interest on the Securities of that series (whether such sums have been paid to it by the Company or by any other obligor of such Securities) in trust for the benefit of the Persons entitled thereto;
(2) that it will give the Trustee notice of any failure by the Company (or by any other obligor of such
Securities) to make any payment of the principal of and premium, if any or interest on the Securities of that series when the same shall be due and payable;
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(3) that it will, at any time during the continuance of
any failure referred to in the preceding paragraph (a)(2) above, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent; and
(4) that it will perform all other duties of Paying Agent as set forth in this Indenture.
(b) If the Company shall act as its own Paying Agent with respect to any series of the Securities, it will on or before
each due date of the principal of, and premium, if any, or interest on Securities of that series, set aside, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay such principal, and premium, if any, or
interest so becoming due on Securities of that series until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of such action, or any failure (by it or any other obligor on such
Securities) to take such action. Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of, and premium, if any, or interest on any Securities of that series, deposit
with the Paying Agent a sum sufficient to pay the principal, and premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of this action or failure so to act.
(c) Notwithstanding anything in this Section to the contrary, (i) the agreement to hold sums in trust as provided
in this Section is subject to the provisions of Section 11.05, and (ii) the Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same terms and conditions as those upon which such sums were held by the Company or such Paying Agent; and, upon such
payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money. Upon any Event of Default under Section 6.01(a)(5) or 6.01(a)(6), the Trustee shall automatically be deemed
to be the Paying Agent.
(d) Except as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 2.01, any money or Government Obligations deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any
series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company at its option at the request of the Company, or (if then held by the Company) shall be discharged from
such trust; and the holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper
published in the English language, customarily published on each Business Day and of general circulation in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 4.04 Notice of Default and Statement by Officers as to Default.
The Company is required to promptly notify the Trustee of the occurrence of any default. The Company will also deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company ending after the date hereof, an Officer’s Certificate, stating whether or not, to the best knowledge of the signers thereof, the Company is in default in the performance and
observance of any of the terms, provisions and conditions of this Indenture (without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
SECTION 4.05 Existence.
Subject to Article Ten, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss thereof is not disadvantageous in any material respect to the holders.
SECTION 4.06 Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 2.01 for Securities of such series, the Company may, with respect to the
Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Sections 2.01(17), 9.01(4) or 9.01(7) for the benefit of the holders of such series if
before the time for such compliance the holders of at least a majority in aggregate principal amount of the Outstanding Securities of such series shall, by act of such holders, either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company
and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
SECTION
4.07 Appointment to Fill Vacancy in Office of Trustee.
The Company, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
Section 4.08 Compliance with Consolidation Provisions.
The Company will not, while any of the Securities remain Outstanding, consolidate with, or merge into, or merge into itself, or sell or convey
all or substantially all of its property to any other company unless the provisions of Article Ten hereof are complied with.
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ARTICLE V
SECURITYHOLDERS’ LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01 Company to Furnish Trustee Names and Addresses of Securityholders.
The Company will furnish or cause to be furnished to the Trustee (a) on a monthly basis on each regular record date a list, in such form
as the Trustee may reasonably require, of the names and addresses of the holders of each series of Securities as of such regular record date, provided that the Company shall not be obligated to furnish or cause to furnish such list at any time that
the list shall not differ in any respect from the most recent list furnished to the Trustee by the Company and (b) at such other times as the Trustee may request in writing within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished; provided, however, that, in either case, no such list need be furnished for any series for which the Trustee shall be the
Security Registrar.
SECTION 5.02 Preservation Of Information; Communications With Securityholders.
(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 Securities contained in the most recent list furnished to it as provided in Section 5.01 and as to the names and addresses of holders of Securities received by the Trustee in its capacity as Security Registrar (if
acting in such capacity).
(b) The Trustee may destroy any list furnished to it as provided in Section 5.01
upon receipt of a new list so furnished.
(c) Securityholders may communicate as provided in Section 312(b) of
the Trust Indenture Act with other Securityholders with respect to their rights under this Indenture or under the Securities.
SECTION
5.03 Reports by the Company.
(a) The Company covenants and agrees to provide to the Trustee
(which delivery may be via electronic mail), within 15 days after the Company is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any
of the foregoing as the Commission may from time to time by rules and regulations prescribe) that the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act; provided, however, the
Company shall not be required to deliver to the Trustee any materials for which the Company has sought and received confidential treatment by the Commission; and provided further, such annual reports, information, documents and reports that are
filed by the Company with the Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system or any successor electronic delivery procedure will be deemed to be filed with the Trustee at the time such documents are filed via the EDGAR
system or such successor procedure for purposes of this Section 5.03 without further action required by the Company.
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(b) For the avoidance of doubt, nothing in this Section 5.03 shall
require the Company to file any annual reports or information, documents or other reports with the Commission and, without limitation to the foregoing and anything in this Indenture to the contrary notwithstanding, any failure by the Company to file
any annual reports, information, documents or other reports with the Commission within the time periods prescribed therefor by the Commission, or at all, shall not be deemed a breach of this Section 5.03. Delivery of such information, documents
and reports to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the
Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). If the Company shall fail to provide any annual report, information, document or other report (or
any portion thereof) to the Trustee by the date, or otherwise in the manner, required by this Section 5.03, but the Company thereafter provides such annual report, information, document or other report (or such portion thereof), as the case may
be, to the Trustee, then any default or Event of Default resulting from the failure to provide such annual report, information, document or other report (or portion thereof) to the Trustee shall be deemed to have been cured.
SECTION 5.04 Reports by the Trustee.
(a) On or before July 15 in each year in which any of the Securities are Outstanding, the Trustee shall transmit by
mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register, a brief report dated as of the preceding May 15, if and to the extent required under Section 313(a) of the Trust
Indenture Act.
(b) The Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each such report shall, at the time of such transmission to Securityholders, be filed by the Trustee with
the Company, with each stock exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee when any Securities become listed on any stock exchange.
ARTICLE VI
REMEDIES OF THE
TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
SECTION 6.01 Events of Default.
(a) Whenever used herein with respect to Securities of a particular series, “Event of Default” means any one
or more of the following events that has occurred and is continuing, unless such event is specifically deleted or modified in accordance with Section 2.01:
(1) the Company defaults in the payment of any installment of interest upon any of the Securities of
that series, as and when the same shall become due and payable, and continuance of such default for a period of 30 days; and, provided, further, that a
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valid extension of an interest payment period by the Company in accordance with the terms of any indenture supplemental hereto, shall not constitute a default in the payment of interest for this
purpose;
(2) the Company defaults in the payment of the principal of, or premium, if any, on any of
the Securities of that series as and when the same shall become due and payable whether at maturity, upon redemption, because of acceleration or otherwise, or in any payment required by any sinking or analogous fund established with respect to that
series; provided, however, that a valid extension of the maturity of such Securities in accordance with the terms of any indenture supplemental hereto shall not constitute a default in the payment of principal or premium, if any;
(3) the Company fails to observe or perform any other of its covenants or agreements with respect to
that series contained in this Indenture or otherwise established with respect to that series of Securities pursuant to Section 2.01 hereof (other than a covenant or agreement that has been expressly included in this Indenture solely for the
benefit of one or more series of Securities other than such series) for a period of 90 days after the date on which written notice of such failure, requiring the same to be remedied and stating that such notice is a “Notice of
Default” hereunder, shall have been given to the Company by the Trustee, by registered or certified mail, or to the Company and the Trustee by the holders of at least 25% in principal amount of the Securities of that series at the time
Outstanding;
(4) an 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 for money borrowed of the Company (other than a default under this Indenture with respect to Securities of any series or a default with respect to any
non-recourse
indebtedness), whether such indebtedness now exists or shall hereafter be created, shall happen and shall result in a principal amount in excess of $100,000,000 of indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise have become due and payable, and such acceleration shall not have been rescinded or annulled, or such indebtedness shall not have been discharged, within a period of 15 days
after there has been given, by registered or certified United States mail, to the Company by the Trustee or to the Company and the Trustee by the holders of at least 25% in aggregate principal amount of the Outstanding Securities of that series a
written notice specifying such event of default and requiring the Company to cause such acceleration to be rescinded or annulled or to cause such indebtedness to be discharged and stating that such notice is a “Notice of Default”
hereunder;
(5) the entry by a court of competent jurisdiction of:
(i) a decree or order for relief in respect of the Company in an involuntary proceeding under any
applicable Bankruptcy Law and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(ii) a decree or order adjudging the Company to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company and such decree or order shall remain unstayed and in effect for a period of 60 consecutive days; or
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(iii) a final and
non-appealable
order appointing a Custodian of the Company or of any substantial part of the property of the Company, or ordering the winding up or liquidation of the affairs of the Company;
(6) the Company pursuant to or within the meaning of any Bankruptcy Law: (i) commences a voluntary
case or proceeding; (ii) consents to the entry of an order for relief against it in an involuntary case or proceeding; (iii) files a petition or answer or consent seeking reorganization or relief or consents to such filing or to the
appointment of or taking possession by a Custodian of it or for all or substantially all of its property, and such Custodian is not discharged within 60 days; (iv) makes a general assignment for the benefit of its creditors; or
(v) admits in writing its inability to pay its debts generally as they become due; or
(7) any
other Event of Default provided for pursuant to Section 2.01 with respect to Securities of that series.
(b) Except as otherwise specified with respect to a series of Securities in accordance with the provisions of
Section 2.01, if an Event of Default (other than an Event of Default specified in Sections 6.01(a)(5) or 6.01(a)(6)) with respect to Securities of any series at the time Outstanding occurs and is continuing, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company (and to the Trustee if given by such Securityholders), may declare the principal of all the
Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) to be due and payable immediately, and upon any such
declaration the same shall become and shall be immediately due and payable. If an Event of Default specified in Sections 6.01(a)(5) or 6.01(a)(6) with respect to Securities of any series at the time Outstanding occurs, the principal amount of
all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any holder, become immediately due and payable.
(c) At
any time after the principal of the Securities of that 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 holders
of a majority in aggregate principal amount of the Securities of that series then Outstanding hereunder, by written notice to the Company and the Trustee, may rescind and annul such declaration and its consequences if: (i) the Company has paid
or deposited with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of that series and the principal of, and premium, if any, on any and all Securities of that series that shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any, and, to the extent that such payment is enforceable under applicable law, upon overdue installments of interest, at the rate per annum or Yield to Maturity (in
the case of Original Issue Discount Securities) expressed in the Securities of that series (or at the respective rates of interest or Yields to
25
Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and the amount payable to the Trustee under Section 7.06, and (ii) any and all Events of
Default under this Indenture with respect to such series, other than the nonpayment of principal on Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) that shall not have become due by their terms, shall have been remedied or waived as provided in Section 6.08.
No such rescission and annulment shall extend to or shall affect any subsequent default or impair any right consequent thereon.
(d) In case the Trustee shall have proceeded to enforce any right with respect to Securities of that series under this
Indenture and such proceedings shall have been discontinued or abandoned because of such rescission or annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company, and the Trustee
shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Company and the Trustee shall continue as though no such proceedings had been taken.
SECTION 6.02 Collection of Indebtedness and Suits for Enforcement by Trustee.
(a) The Company covenants that (1) in case it shall default in the payment of any installment of interest on any of
the Securities of a series, or any payment required by any sinking or analogous fund established with respect to that series as and when the same shall have become due and payable, and such default shall have continued for a period of 90 Business
Days, or (2) in case it shall default in the payment of the principal of, or premium, if any, on any of the Securities of a series when the same shall have become due and payable, whether upon maturity of the Securities of a series or upon
redemption or upon declaration or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee, for the benefit of the holders of the Securities of that series, the whole amount that then shall have been become due and payable on
all such 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 overdue installments of interest at the rate per annum expressed in the Securities of that series; and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and the amount payable to the
Trustee under Section 7.06.
(b) If the Company shall fail to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action 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 other obligor upon the Securities of that series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the
property of the Company or other obligor upon the Securities of that series, wherever situated.
(c) In case of any
receivership, insolvency, liquidation, bankruptcy, reorganization, readjustment, arrangement, composition or judicial proceedings affecting the Company, or its
26
creditors or property, the Trustee shall have power to intervene in such proceedings and take any action therein that may be permitted by the court and shall (except as may be otherwise provided
by law) be entitled to file such proofs of claim and other papers and documents as may be necessary or advisable in order to have the claims of the Trustee and of the holders of Securities of such series allowed for the entire amount due and payable
by the Company under this Indenture at the date of institution of such proceedings and for any additional amount that may become due and payable by the Company after such date, and to collect and receive any moneys or other property payable or
deliverable on any such claim, and to distribute the same after the deduction of the amount payable to the Trustee under Section 7.06; and any receiver, assignee or trustee in bankruptcy or reorganization is hereby authorized by each of the
holders of 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 Securityholders, to pay to the Trustee any amount due it under
Section 7.06.
(d) All rights of action and of asserting claims under this Indenture, or under any of the
terms established with respect to Securities of that series, may be enforced by the Trustee without the possession of any of such Securities, or the production thereof at 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, after provision for payment to the Trustee of any amounts due under Section 7.06, be for the ratable
benefit of the holders of the Securities of such series.
In case of an Event of Default hereunder, the Trustee may in its discretion
proceed to protect and enforce the rights 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 at law or in equity or 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.
Nothing contained herein shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on
behalf of any Securityholder any plan of reorganization, arrangement, adjustment or composition affecting the Securities of that series or the rights of any holder thereof or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding.
SECTION 6.03 Application of Moneys Collected.
Any moneys or property collected by the Trustee pursuant to this Article with respect to a particular series of Securities shall be applied in
the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such moneys or property on account of principal, or premium, if any, or interest, upon presentation of the Securities of that series, and notation
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 of all amounts payable to the Trustee under Section 7.06;
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SECOND: To the payment of the amounts then due and unpaid upon Securities of such series for
principal, and premium, if any, and interest, in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for
principal, and premium, if any, and interest, respectively and
THIRD: To the payment of the remainder, if any, to the Company, its
successors or assigns or to whomever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.
SECTION 6.04 Limitation on Suits.
No holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any suit,
action or proceeding in equity or at law 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 (i) such holder previously shall have given to the Trustee
written notice of an Event of Default and of the continuance thereof with respect to the Securities of such series specifying such Event of Default, as hereinbefore provided; (ii) the holders of not less than 25% in aggregate principal amount
of the 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; (iii) such holder or holders 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 (iv) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity, shall have failed
to institute any such action, suit or proceeding and (v) during such 60 day period, the holders of a majority in principal amount of the Securities of that series do not give the Trustee a direction inconsistent with the request.
Notwithstanding anything contained herein to the contrary, any other provisions of this Indenture, the right of any holder of any Security to
receive payment of the principal of, and premium, if any, and interest on such Security, as therein provided, on or after the respective due dates expressed in such Security (or in the case of redemption, on the redemption date), or to institute
suit for the enforcement of any such payment on or after such respective dates or redemption date, shall not be impaired or affected without the consent of such holder and by accepting a Security hereunder it is expressly understood, intended and
covenanted by the taker and holder of every Security of such series with every other such taker and holder and the Trustee, that no one or more holders of Securities of such series shall have any right in any manner whatsoever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the rights of the holders of any other of such 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 Securities of such series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and
the Trustee shall be entitled to such relief as can be given either at law or in equity.
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SECTION 6.05 Rights and Remedies Cumulative; Delay or Omission Not Waiver.
(a) Except as otherwise provided in Section 2.07, all powers and remedies given by this Article to the Trustee
or to the Securityholders shall, to the extent permitted by law, be deemed cumulative and not exclusive of any other powers and remedies available to the Trustee or the holders of the Securities, by judicial proceedings or otherwise, to enforce the
performance or observance of the covenants and agreements contained in this Indenture or otherwise established with respect to such Securities.
(b) No delay or omission of the Trustee or of any holder of any of the Securities to exercise any right or power
accruing upon any Event of 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 on acquiescence therein; and, subject to the provisions of Section 6.04,
every power and remedy given by this Article or by law to the Trustee or the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
SECTION 6.06 Control by Securityholders.
The holders of a majority in aggregate principal amount of the Securities of any series at the time Outstanding, determined in accordance with
Section 8.04, 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 such series; provided,
however, that such direction shall not be in conflict with any rule of law or with this Indenture or be unduly prejudicial to the rights of holders of Securities of any other series at the time Outstanding determined in accordance with
Section 8.04, and if requested by the Trustee, shall be accompanied by indemnity or security satisfactory to the Trustee. Subject to the provisions of Section 7.01, the Trustee shall have the right to decline to follow any such direction
if the Trustee in good faith shall, by a Responsible Officer or Officers of the Trustee, determine that the proceeding so directed would involve the Trustee in personal liability.
SECTION 6.07 Undertaking to Pay Costs.
All parties to this Indenture agree, and each holder of any Securities by such holder’s acceptance thereof shall be deemed to have agreed,
that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit, having due regard to the merits and good
faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder, or group of Securityholders, holding more than 10%
in aggregate principal amount of the Outstanding Securities of any series, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of, or premium, if any, or interest on any Security of such series, on or
after the respective due dates expressed in such Security or established pursuant to this Indenture.
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SECTION 6.08 Waiver of Past Defaults.
The holders of not less than a majority in principal amount of the Outstanding Securities of any series, determined in accordance with
Section 8.04, may on behalf of the holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or
amended without the consent of the holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
ARTICLE VII
CONCERNING THE
TRUSTEE
SECTION 7.01 Certain Duties and Responsibilities of Trustee.
(a) The Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a series and after the
curing of all Events of Default with respect to the Securities of that series that may have occurred, shall undertake to perform with respect to the Securities of such series such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants shall be read into this Indenture against the Trustee. In case an Event of Default with respect to the Securities of a series has occurred (that has not been cured or waived), the Trustee shall exercise with
respect to Securities of that series 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 man would exercise or use under the circumstances in the conduct of his own
affairs.
(b) 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) prior to the occurrence of an Event of Default with respect to the Securities of a series and after
the curing or waiving of all such Events of Default with respect to that series that may have occurred:
(a) the duties and obligations of the Trustee shall with respect to the Securities of such series be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable with respect to the Securities of such series except for the performance of such duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
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(b) in the absence of bad faith on the part of the
Trustee, the Trustee may with respect to the Securities of such series conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any 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 that by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture;
(2) the Trustee shall
not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers 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 not less than a majority in principal amount of the Securities of any series at the time Outstanding relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee under this Indenture with respect to the Securities of that series; and
(4) None of the provisions contained in this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or liability is not
reasonably assured to it under the terms of this Indenture or indemnity satisfactory to the Trustee against such risk is not reasonably assured to it.
SECTION 7.02 Certain Rights of Trustee.
Except as otherwise provided in Section 7.01:
(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, approval, bond, security or other paper or 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 a Board
Resolution or an instrument signed in the name of the Company, by the President or any Vice President and by the Secretary or an Assistant Secretary or the Treasurer or an Assistant Treasurer thereof (unless other evidence in respect thereof is
specifically prescribed herein);
(c) The Trustee may consult with counsel and the written advice of such counsel
or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken or suffered or omitted hereunder in good faith and in reliance thereon;
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(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, order or direction of any of the Securityholders, pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory
to the Trustee against the costs, expenses and liabilities that may be incurred therein or thereby;
(e) The
Trustee shall not be liable for any action taken 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;
(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, security, or other papers or documents, unless requested in writing so to do by the holders of not less than a majority in principal amount of the
Outstanding Securities of the particular series affected thereby (determined as provided in Section 8.04); provided, however, 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 indemnity against such costs, expenses
or liabilities as a condition to so proceeding. The reasonable expense of every such examination shall be paid by the Company or, if paid by the Trustee, shall be repaid by the Company upon demand;
(g) The Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(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 Securityholder 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, 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; and
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(l) The Trustee may request that the Company deliver an Officer’s
Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any person authorized to sign an
Officer’s Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.
SECTION 7.03 Trustee Not Responsible for Recitals or Issuance or Securities.
(a) The recitals contained herein and in the Securities shall be taken as the statements of the Company, and the Trustee
assumes no responsibility for the correctness of the same.
(b) The Trustee makes no representations as to the
validity or sufficiency of this Indenture or of the Securities.
(c) The Trustee shall not be accountable for the
use or application by the Company of any of the Securities or of the proceeds of such Securities, or for the use or application of any moneys paid over by the Trustee in accordance with any provision of this Indenture or established pursuant to
Section 2.01, or for the use or application of any moneys received by any Paying Agent other than the Trustee.
SECTION
7.04 May Hold Securities.
The Trustee or any Paying Agent or Security Registrar, in its individual or any other
capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Security Registrar.
SECTION 7.05 Moneys Held in Trust.
Subject to the provisions of Section 11.05, 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. The Trustee shall be under no liability for interest on any moneys received by it hereunder except such as it may
agree with the Company to pay thereon.
SECTION 7.06 Compensation and Reimbursement.
(a) The Company covenants and agrees to pay to the Trustee, and the Trustee shall be entitled to, such 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 the Company, and the Trustee may from time to time agree in writing, for all services rendered by it in the
execution of the trusts hereby created and in the exercise and performance of any of the powers and duties hereunder of the Trustee, and, except as otherwise expressly provided herein, 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 of all
Persons not regularly in its employ) except any such expense, disbursement or advance as may arise from its gross negligence or willful misconduct. The Company also covenants to indemnify the Trustee (and its officers, agents, directors and
employees) for, and to
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hold it harmless against, any loss, liability or expense incurred without gross negligence or willful misconduct on the part of the Trustee and arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending itself against any claim of liability in the premises.
(b) The obligations of the Company under this Section to compensate and indemnify the Trustee 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 Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the benefit of the holders of particular Securities. The obligations of the Company under this Section 7.06 shall survive the satisfaction and discharge of the Indenture and the earlier
resignation or removal of the Trustee.
(c) Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee and its agents and any authenticating agent incur expenses or render services after an Event of Default specified in Section 6.01(a)(5) or Section 6.01(a)(6), the expenses and compensation for the services
are intended to constitute expenses of administration under any bankruptcy, insolvency or similar laws.
SECTION
7.07 Reliance on Officer’s Certificate.
Except as otherwise provided in Section 7.01, 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 suffering or omitting to take any action hereunder, such matter (unless other evidence in
respect thereof be herein specifically prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officer’s Certificate delivered to the Trustee and such
certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted to be taken by it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire any “conflicting interest” within the meaning of Section 310(b) of the Trust Indenture Act,
the Trustee and the Company shall in all respects comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION
7.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee with respect to the Securities
issued hereunder which shall at all times be a corporation organized and doing business under the laws of the United States of America or any State or Territory thereof or of the District of Columbia, or a corporation or other Person permitted to
act as trustee by the Commission, authorized under such laws to exercise corporate trust powers, having a combined capital and surplus of at least 50 million U.S. dollars ($50,000,000), and subject to supervision or examination by federal,
state, territorial, or District of Columbia authority. If such corporation 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, the combined capital and surplus of
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such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. The Company may not, nor may any Person directly or
indirectly controlling, controlled by, or under common control with the Company, serve as Trustee. In case at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, the Trustee shall resign immediately in
the manner and with the effect specified in Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment
of Successor.
(a) The Trustee or any successor hereafter appointed, may at any time resign with respect to the
Securities of one or more series by giving written notice thereof to the Company and by transmitting notice of resignation by mail, first class postage prepaid, to the Securityholders of such series, as their names and addresses appear upon the
Security Register. Upon receiving such notice of resignation, the Company shall promptly appoint a successor trustee with respect to Securities of 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 shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of
resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee with respect to Securities of such series, or any Securityholder of that series who has been a bona fide holder of a
Security or Securities for at least six months may on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper
and prescribe, appoint a successor trustee.
(b) In case at any time any one of the following shall occur:
(1) the Trustee shall fail to comply with the provisions of Section 7.08 after written request
therefor by the Company or by any Securityholder who has been a bona fide holder of a Security or Securities for at least six months; or
(2) the Trustee shall cease to be eligible in accordance with the provisions of Section 7.09 and
shall fail to resign after written request therefor by the Company or by any such Securityholder; or
(3) the Trustee shall become incapable of acting, or shall be adjudged a bankrupt or insolvent, or
commence a voluntary bankruptcy proceeding, or a receiver of the Trustee or of its property shall be appointed or consented to, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, (i) the Company may remove the Trustee with respect to all Securities and
appoint a successor trustee by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or (ii) unless the
Trustee’s duty to resign is stayed as provided herein, any Securityholder who has been a bona fide holder of a Security or Securities for at least six months may, on behalf of that holder and all others similarly situated, petition any
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court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee. Such court may thereupon after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The holders of a majority in aggregate principal amount of
the Securities of any series at the time Outstanding may at any time remove the Trustee with respect to such series by so notifying the Trustee and the Company and may appoint a successor Trustee for such series with the consent of the Company.
(d) Any resignation or removal of the Trustee and appointment of a successor trustee with respect to the Securities of
a series pursuant to any of the provisions of this Section shall become effective upon acceptance of appointment by the successor trustee as provided in Section 7.11.
(e) Any successor trustee appointed pursuant to this Section may be appointed with respect to the Securities of one or
more series or all of such series, and at any time there shall be only one Trustee with respect to the Securities of any particular series.
SECTION 7.11 Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor trustee with respect to all Securities, every such successor
trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to such successor trustee all the rights, powers, and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor trustee all property and
money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor trustee
with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein
each successor trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates, (2) shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such
Trustees
co-trustees
of the same trust, that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee and
that no Trustee shall be responsible for
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any act or failure to act on the part of any other Trustee hereunder; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall
become effective to the extent provided therein, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor trustee relates have no further responsibility for the exercise of rights
and powers or for the performance of the duties and obligations vested in the Trustee under this Indenture, and each such successor trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor trustee relates; but, on request of the Company or any successor trustee, such retiring Trustee shall duly assign,
transfer and deliver to such successor trustee, to the extent contemplated by such supplemental indenture, the property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment
of such successor trustee relates.
(c) Upon request of any such successor trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to such successor trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor trustee shall accept its appointment unless at the time of such acceptance such successor trustee
shall be qualified and eligible under this Article.
(e) Upon acceptance of appointment by a successor trustee as
provided in this Section, the Company shall transmit notice of the succession of such trustee hereunder by mail, first class postage prepaid, to the Securityholders, as their names and addresses appear upon the Security Register. If the Company
fails to transmit such notice within ten days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be transmitted at the expense of the Company.
SECTION 7.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be
qualified under the provisions of Section 7.08 and eligible under the provisions of Section 7.09, without the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary
notwithstanding. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver
the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION
7.13 Preferential Collection of Claims against the Company.
The Trustee shall comply with Section 311(a) of
the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent
included therein.
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SECTION 7.14 Notice of Default
The Trustee shall, within 60 days after the occurrence of a default (which is actually known to the Trustee and is continuing), with respect to
the Securities of a series, to give holders of the Securities of such series Notice of Default with respect to such default; provided, however, that except in the case of a default in the payment of the principal of or any premium or interest, or in
the payment of any sinking fund installment, on any Securities of such series, the Trustee may withhold such notice if it in good faith determines that the withholding of such notice is in the interests of the holders of the Securities of such
series.
ARTICLE VIII
CONCERNING THE SECURITYHOLDERS
SECTION 8.01 Evidence of Action by Securityholders.
Whenever in this Indenture it is provided that the holders of a majority or specified percentage in aggregate principal amount of the
Securities of a particular 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 majority or specified percentage of that series have joined therein may be evidenced by any instrument or any number of instruments of similar tenor executed by such holders of Securities of that series in Person or by agent or proxy appointed
in writing.
If the Company shall solicit from the Securityholders of any series any request, demand, authorization, direction, notice,
consent, waiver or other action, the Company may, at its option, as evidenced by an Officer’s Certificate, fix in advance a record date for such series for the determination of Securityholders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other action, but the Company shall have no obligation to do so. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or other action may be
given before or after the record date, but only the Securityholders of record at the close of business on the record date shall be deemed to be Securityholders for the purposes of determining whether Securityholders of the requisite proportion of
Outstanding Securities of that series have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other action, and for that purpose the Outstanding Securities of that series shall be computed
as of the record date; provided, however, that no such authorization, agreement or consent by such Securityholders on the record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
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SECTION 8.02 Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01, proof of the execution of any instrument by a Securityholder (such proof will not require
notarization) or his agent or proxy and proof of the holding by any Person of any of the Securities shall be sufficient if made in the following manner:
(a) The fact and date of the execution by any such Person of any instrument may be proved in any reasonable manner
acceptable to the Trustee.
(b) The ownership of Securities shall be proved by the Security Register of such
Securities or by a certificate of the Security Registrar thereof.
(c) The Trustee may require such additional
proof of any matter referred to in this Section as it shall deem necessary.
SECTION 8.03 Who May be Deemed Owners.
Prior to the due presentment for registration of transfer of any Security, the Company, the Trustee, any Paying Agent and any Security
Registrar may deem and treat the Person in whose name such Security shall be registered upon the books of the Company as the absolute owner of such Security (whether or not such Security shall be overdue and notwithstanding any notice of ownership
or writing thereon made by anyone other than the Security Registrar) for the purpose of receiving payment of or on account of the principal of, premium, if any, and (subject to Section 2.03) interest on such Security and for all other purposes;
and neither the Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be affected by any notice to the contrary.
Without limiting the generality of the foregoing, a Securityholder, including any Depositary as the Securityholder of a Global Security, may
make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Securityholders, and any Depositary
that is the Securityholder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such Global Security through such Depositary’s standing instructions and customary practices.
SECTION 8.04 Certain Securities Owned by Company Disregarded.
In determining whether the holders of the requisite aggregate principal amount of Securities of a particular series have concurred in any
direction, consent of waiver under this Indenture, the Securities of that series that are owned by the Company or any other obligor on the Securities of that series or by any Person directly or indirectly controlling or controlled by or under common
control with the Company or any other obligor on the Securities of that series shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be
protected in relying on any such direction, consent or waiver, only Securities of such series that the Trustee actually knows are so owned shall be so disregarded. The Securities so owned that have been pledged in good faith may be regarded as
Outstanding for the purposes of this Section, if the pledgee shall establish to the satisfaction of the Trustee the pledgee’s right so to act with respect to such 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. In case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall be full protection to the
Trustee.
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SECTION 8.05 Actions Binding on Future Securityholders.
At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by the
holders of the majority or percentage in aggregate principal amount of the Securities of a particular series specified in this Indenture in connection with such action, any holder of a Security of that series that is shown by the evidence to be
included in the Securities the holders of which have consented to such action may, by filing written notice with the Trustee, and upon proof of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as
aforesaid any such action taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of such Security, and of any Security issued in exchange therefor, on registration of transfer
thereof or in place thereof, irrespective of whether or not any notation in regard thereto is made upon such Security. Any action taken by the holders of the majority or percentage in aggregate principal amount of the Securities of a particular
series specified in this Indenture in connection with such action shall be conclusively binding upon the Company, the Trustee and the holders of all the Securities of that series.
ARTICLE IX
SUPPLEMENTAL
INDENTURES
SECTION 9.01 Supplemental Indentures without the Consent of Securityholders.
In addition to any supplemental indenture otherwise authorized by this Indenture, the Company 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 as then in effect), without the consent of the Securityholders, for one or more of the following purposes:
(1) to cure any ambiguity, defect, or inconsistency herein, in the Securities of any series or in any
supplemental indenture, or to make such other provisions in regard to matters or questions arising under this Indenture that do not adversely affect the interests of the Securityholders of any Securities of such series in any material respect;
provided that any amendment made solely to conform the provisions of this Indenture to the description of the Securities contained in the Company’s prospectus or other offering document pursuant to which such Securities were sold will not be
deemed to adversely affect the interest of the holders of the Securities;
(2) to comply with
Article Ten;
(3) to provide for uncertificated Securities in addition to or in place of
certificated Securities;
(4) to add to the covenants of the Company for the benefit of the holders
of all or any series of Securities (and if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or
power herein conferred upon the Company;
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(5) to add to, delete from, or revise the conditions,
limitations, and restrictions on the authorized amount, terms, or purposes of issue, authentication, and delivery of Securities, as herein set forth;
(6) to make any change that does not adversely affect the rights of any Securityholder in any material
respect;
(7) to provide for the issuance of and establish the form and terms and conditions of the
Securities of any series as provided in Section 2.01, to establish the form of any certifications required to be furnished pursuant to the terms of this Indenture or any series of Securities, or to add to the rights of the holders of any series
of Securities;
(8) to add any additional Events of Default for the benefit of the holders of all or
any series of Securities (and if such additional Events of Default are to be for the benefit of less than all series of Securities, stating that such additional Events of Default are expressly being included solely for the benefit of such series);
(9) to add to or change any of the provisions of this Indenture to such extent as shall be
necessary to permit or facilitate the issuance of Securities in uncertificated form;
(10) to add
to, change or eliminate any of the provisions of this Indenture in respect of one or more series of Securities, provided that any such addition, change or elimination (A) shall neither (i) apply to any Security of any series created prior
to the execution of such supplemental indenture and entitled to the benefit of such provision nor (ii) modify the rights of the holder of any such Security with respect to such provision or (B) shall become effective only when there is no
such Security Outstanding;
(11) to secure the Securities; or
(12) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with
respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the
requirements of Section 7.11.
The Trustee is hereby authorized to join with the Company in the execution of any such supplemental
indenture, and to make any further appropriate agreements and stipulations that may be therein contained, but the Trustee shall not be obligated to enter into any such supplemental indenture that affects the Trustee’s own rights, duties or
immunities under this Indenture or otherwise.
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Any supplemental indenture authorized by the provisions of this Section may be executed by the
Company and the Trustee without the consent of the holders of any of the Securities at the time Outstanding, notwithstanding any of the provisions of Section 9.02.
SECTION 9.02 Supplemental Indentures with Consent of Securityholders.
With the consent (evidenced as provided in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the
Securities of each series affected by such supplemental indenture or indentures at the time Outstanding, the Company, when authorized by Board Resolutions, 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 as then in effect) 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 not covered by Section 9.01 the rights of the holders of the Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent
of the holders of each Security then Outstanding and affected thereby, (i) change the stated maturity of any Securities of any series, or reduce the principal amount thereof, or reduce the rate or change the time of payment of interest thereon,
or reduce any premium payable upon the redemption thereof; (ii) reduce the amount of principal of an Original Issue Discount Security or any other Security payable upon acceleration of the maturity thereof pursuant to Section 6.01(b);
(iii) change the currency in which any Security or any premium or interest is payable; (iv) impair the right of any holder to enforce any payment on or with respect to any Security; (v) adversely change the right to convert or
exchange, including decreasing the conversion rate or increasing the conversion price of, such Security (if applicable); (vi) adversely change the right of holders exercisable upon the repurchase of the Securities, if the Securities initially
provide for such rights; (vii) reduce the percentage in principal amount of outstanding Securities of any series, the consent of whose holders is required for modification or amendment of this Indenture or for waiver of compliance with certain
provisions of this Indenture or for waiver of certain defaults; (viii) reduce the requirement contained in this Indenture for quorum or voting or (ix) modify any of the above provisions.
It shall not be necessary for the consent of the Securityholders of any series affected thereby under this Section to approve the particular
form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
SECTION
9.03 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture pursuant to the provisions
of this Article or of Article X, this Indenture shall, with respect to such series, be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Company and the holders of Securities of the series affected thereby 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.
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SECTION 9.04 Securities Affected by Supplemental Indentures.
Securities of any series, affected by a supplemental indenture, authenticated and delivered after the execution of such supplemental indenture
pursuant to the provisions of this Article or of Article X, may bear a notation in form approved by the Company, provided such form meets the requirements of any exchange upon which such series may be listed, as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities of that series so modified as to conform, in the opinion of the Board of Directors of the Company, to any modification of this Indenture contained in any such supplemental
indenture may be prepared by the Company, authenticated by the Trustee and delivered in exchange for the Securities of that series then Outstanding.
SECTION 9.05 Execution of Supplemental Indentures.
Upon the request of the Company, accompanied by its Board Resolutions authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Securityholders required to consent thereto 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. The Trustee, subject to the provisions of
Section 7.01, may receive an Opinion of Counsel as conclusive evidence that any supplemental indenture executed pursuant to this Article is authorized or permitted by, and conforms to, the terms of this Article and that it is proper for the
Trustee under the provisions of this Article to join in the execution thereof; provided, however, that such Opinion of Counsel need not be provided in connection with the execution of a supplemental indenture that establishes the terms of a series
of Securities pursuant to Section 2.01 hereof.
ARTICLE X
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 10.01 When the Company May Consolidate, Merge, Etc.
The Company may not (a) merge with or into or consolidate with, or (b) sell, assign, transfer, lease or convey all or substantially
all of its properties and assets to, any Person other than, with respect to this clause (b), a direct or indirect wholly-owned subsidiary of the Company, and no Person shall (x) merge with or into or consolidate with the Company, or
(y) except for any direct or indirect wholly-owned subsidiary of the Company, sell, assign, transfer, lease or convey all or substantially all of its properties and assets to the Company, unless:
(a) the Company is the surviving corporation or the Person formed by or surviving such merger or consolidation or to
which such sale, assignment, transfer, lease or conveyance shall have been made (the “Successor”), if other than the Company, shall expressly assume by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Company under the Securities and this Indenture;
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(b) immediately after giving effect to such transaction, no default or
Event of Default shall have occurred and be continuing;
(c) the Company delivers to the Trustee an Officer’s
Certificate and an Opinion of Counsel, each stating that such supplemental indenture complies with this Indenture.
The Successor will be
the successor to the Company, and will be substituted for, and may exercise every right and power and become the obligor on the Securities with the same effect as if the Successor had been named as the Company herein but, in the case of a sale,
assignment, transfer, lease or conveyance of all or substantially all of the properties and assets of the Company, the predecessor Company will not be released from its obligations to pay the principal of, premium, if any, and interest on the
Securities.
ARTICLE XI
SATISFACTION AND DISCHARGE
SECTION 11.01 Satisfaction and Discharge of Indenture.
If at any time: (a) the Company shall have delivered to the Trustee for cancellation all Securities of a series theretofore authenticated
(other than any Securities that shall have been destroyed, lost or stolen and that shall have been replaced or paid as provided in Section 2.07) and Securities for whose payment money or Governmental Obligations have theretofore been deposited
in trust or segregated and held in trust by the Company (and thereupon repaid to the Company or discharged from such trust, as provided in Section 11.05); or (b) all such Securities of a particular series not theretofore delivered to the
Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of
redemption, and the Company shall deposit or cause to be deposited with the Trustee as trust funds the entire amount in moneys or Governmental Obligations sufficient or a combination thereof, sufficient in the opinion of a nationally recognized firm
of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay at maturity or upon redemption all Securities of that series not theretofore delivered to the Trustee for cancellation, including
principal, and premium, if any, and interest due or to become due to such date of maturity or Redemption Date, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder with respect to such series by
the Company then this Indenture shall thereupon cease to be of further effect with respect to such series except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03 and 7.10, that shall survive until the date of maturity or
redemption date, as the case may be, and Sections 7.06 and 11.05, that shall survive to such date and thereafter, and the Trustee, on demand of the Company and at the cost and expense of the Company shall execute such instruments as may be
reasonably requested by the Company acknowledging satisfaction of and discharging this Indenture with respect to such series.
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SECTION 11.02 Discharge of Obligations.
If at any time all such Securities of a particular series not heretofore delivered to the Trustee for cancellation or that have not become due
and payable as described in Section 11.01 shall have been paid by the Company by depositing irrevocably with the Trustee as trust funds money in U.S. dollars sufficient or an amount of
non-callable
Governmental Obligations, the principal of and interest on which when due, will be sufficient or a combination thereof, sufficient in the opinion of a nationally recognized firm of independent accountants expressed in a written certification thereof
delivered to the Trustee, to pay at maturity or upon redemption all such Securities of that series not theretofore delivered to the Trustee for cancellation, including principal, and premium, if any, and interest due or to become due to such date of
maturity or Redemption Date, as the case may be, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company with respect to such series, then after the date such moneys or Governmental Obligations, as the
case may be, are deposited with the Trustee the obligations of the Company under this Indenture with respect to such series shall cease to be of further effect except for the provisions of Sections 2.03, 2.05, 2.07, 4.01, 4.02, 4.03, 7.06, 7.10
and 11.05 hereof that shall survive until such Securities shall mature and be paid. Thereafter, Sections 7.06 and 11.05 shall survive.
SECTION 11.03 Deposited Moneys to be Held in Trust.
All moneys or Governmental Obligations deposited with the Trustee pursuant to Sections 11.01 or 11.02 shall be held in trust and shall be
available for payment as due, either directly or through any Paying Agent (including the Company acting as its own Paying Agent), to the holders of the particular series of Securities for the payment or redemption of which such moneys or
Governmental Obligations have been deposited with the Trustee.
SECTION 11.04 Payment of Moneys Held by Paying
Agents.
In connection with the satisfaction and discharge of this Indenture all moneys or Governmental Obligations then held by any Paying
Agent under the provisions of this Indenture shall, upon demand of the Company, be paid to the Trustee and thereupon such Paying Agent shall be released from all further liability with respect to such moneys or Governmental Obligations.
SECTION 11.05 Repayment to Company.
Any moneys or Governmental Obligations deposited with any Paying Agent or the Trustee, or then held by the Company, in trust for payment of
principal of or premium or interest on the Securities of a particular series that are not applied but remain unclaimed by the holders of such Securities for at least two years after the date upon which the principal of, and premium, if any, or
interest on such Securities shall have respectively become due and payable, shall be repaid to the Company on May 31 of each year or (if then held by the Company) shall be discharged from such trust; and thereupon the Paying Agent and the
Trustee shall be released from all further liability with respect to such moneys or Governmental Obligations, and the holder of any of the Securities entitled to receive such payment shall thereafter, as an unsecured general creditor, look only to
the Company for the payment thereof.
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ARTICLE XII
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 12.01 No Recourse.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon or
otherwise in respect thereof, shall be had against any incorporator, stockholder, officer or director, past, present or future as such, of the Company or of any predecessor or successor corporation, either directly or through the Company or any such
predecessor or successor corporation, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued
hereunder are solely corporate obligations, and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors as such, of the Company or of any predecessor or
successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom; and
that any and all such personal liability of every name and nature, 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, stockholder, officer or director as
such, because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, are hereby expressly waived and
released as a condition of, and as a consideration for, the execution of this Indenture and the issuance of such Securities.
ARTICLE XIII
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01 Company’s Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any Securities or any series of
Securities, as the case may be, designated pursuant to Section 2.01 as being defeasible pursuant to such Sections 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 2.01 and upon compliance
with the conditions set forth below in this Article. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 2.01 for such Securities.
SECTION 13.02 Defeasance and Discharge.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, the Company shall be deemed to have been discharged from its obligations with respect to such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called
“Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Securities and to have
46
satisfied all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute such
instruments as may be reasonably requested by the Company acknowledging the same), subject to the following which shall survive until otherwise terminated or discharged hereunder: (1) the rights of holders of such Securities to receive, solely
from the trust fund described in Section 13.04 and as more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments are due, (2) the Company’s obligations
with respect to such Securities under Sections 2.05, 2.06, 2.07, 4.01, 4.02 and 4.03, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the
Company may exercise its option (if any) to have this Section applied to any Securities notwithstanding the prior exercise of its option (if any) to have Section 13.03 applied to such Securities.
SECTION 13.03 Covenant Defeasance.
Upon the Company’s exercise of its option (if any) to have this Section applied to any Securities or any series of Securities, as the case
may be, (1) the Company shall be released from its obligations under Article X and any covenants provided pursuant to Sections 2.01(17), 9.01(4) or 9.01(7) for the benefit of the holders of such Securities and (2) the occurrence of
any event specified in Sections 6.01(3) (with respect to any such covenants provided pursuant to Sections 2.01(17), 9.01(4) or 9.01(7)) and 6.01(a)(7) shall be deemed not to be or result in an Event of Default, in each case with respect to
such Securities as provided in this Section on and after the date the conditions set forth in Section 13.04 are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect
to such Securities, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any such specified Section (to the extent so specified in the case of Section 6.01(3)), whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities
shall be unaffected thereby.
SECTION 13.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 13.02 or Section 13.03 to any Securities or any series of
Securities, as the case may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the requirements contemplated by Section 7.09 and agrees to comply with the provisions of this Article applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefits of the holders of such Securities, (A) money in an amount, or (B) Government Obligations which through the scheduled payment of principal and
interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination thereof, in each case sufficient, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be
47
applied by the Trustee (or any such other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated Maturities, in
accordance with the terms of this Indenture and such Securities.
(2) In the event of an election to
have Section 13.02 apply to any Securities or any series of Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of this Indenture, there has been a change in the applicable federal income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall
confirm that, the holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the deposit, Defeasance and discharge to be effected with respect to such Securities and will be subject to federal income
tax on the same amount, in the same manner and at the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 13.03 apply to any Securities or any series of
Securities, as the case may be, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the holders of such Securities will not recognize gain or loss for federal income tax purposes as a result of the deposit and
Covenant Defeasance to be effected with respect to such Securities and will be subject to federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit and Covenant Defeasance were not to occur.
(4) The Company shall have delivered to the Trustee an Officer’s Certificate to the effect
that it has been informed by the relevant securities exchange(s) that neither such Securities nor any other Securities of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would become, an Event of Default with
respect to such Securities or any other Securities shall have occurred and be continuing at the time of such deposit or, with regard to any such event specified in Sections 6.01(a)(5) and 6.01(a)(6), at any time on or prior to the 90th day
after the date of such deposit (it being understood that this condition shall not be deemed satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a
default under, any indenture or other agreement or instrument for borrowed money, pursuant to which in excess of $100,000,000 principal amount is then outstanding, to which the Company is a party or by which it is bound.
(7) Such Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit
constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under such Act or exempt from registration thereunder.
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(8) The Company shall have delivered to the Trustee an
Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
SECTION 13.05 Deposited Money and Government Obligations to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of Section 4.03(d), all money and Government Obligations (including the proceeds thereof) deposited with the
Trustee or other qualifying trustee (solely for purposes of this Section and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.04 in respect of any
Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the
extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed
against the Government Obligations deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the holders of Outstanding
Securities.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time
upon request of the Company any money or Government Obligations held by it as provided in Section 13.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited to effect the Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 13.06 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant
to Sections 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust
pursuant to Section 13.05 with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of
its obligations, the Company shall be subrogated to the rights (if any) of the holders of such Securities to receive such payment from the money so held in trust.
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ARTICLE XIV
MISCELLANEOUS PROVISIONS
SECTION 14.01 Effect on Successors and Assigns.
All the covenants, stipulations, promises and agreements in this Indenture contained by or on behalf of the Company shall bind their respective
successors and assigns, whether so expressed or not.
SECTION 14.02 Actions by Successor.
Any act or proceeding by any provision of this Indenture authorized or required to be done or performed by any board, committee or officer of
the Company shall and may be done and performed with like force and effect by the corresponding board, committee or officer of any corporation that shall at the time be the lawful sole successor of the Company.
SECTION 14.03 Surrender of Company Powers.
The Company by instrument in writing executed by authority of 2/3
(two-thirds)
of its Board of
Directors and delivered to the Trustee may surrender any of the powers reserved to the Company, and thereupon such power so surrendered shall terminate both as to the Company and as to any successor corporation.
SECTION 14.04 Notices.
Except as otherwise expressly provided herein any notice or demand that by any provision of this Indenture is required or permitted to be given
or served by the Trustee or by the holders of Securities to or on the Company may be given or served by being deposited first class postage prepaid in a post-office letterbox addressed (until another address is filed in writing by the Company with
the Trustee), as follows: Corporate Secretary, Athene Holding Ltd., Chesney House, 96 Pitts Bay Road, Pembroke, HM08, Bermuda, with copies of any notice of an Event of Default to the attention of the Executive Vice President, Legal at the same
address. Any notice, election, request or demand by the Company or any Securityholder 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.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any Security provides for notice
of any event (including any notice of redemption or purchase) to a Securityholder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary pursuant to the standing instructions from the
Depositary.
SECTION 14.05 Governing Law.
This Indenture and each Security shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of said State.
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SECTION 14.06 Treatment of Securities as Debt.
It is intended that the Securities will be treated as indebtedness and not as equity for federal income tax purposes. The provisions of this
Indenture shall be interpreted to further this intention.
SECTION 14.07 Compliance Certificates and Opinions.
(a) Upon any application or demand by the Company to the Trustee to take any action under any of the provisions of this
Indenture, the Company, shall furnish to the Trustee an Officer’s Certificate stating that all conditions precedent 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 documents is specifically required by any provision of this Indenture
relating to such particular application or demand, no additional certificate or opinion need be furnished.
(b) Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance
with a condition or covenant in this Indenture shall include (1) a statement that the Person making such certificate or opinion has read such covenant or condition; (2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such Person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such Person, such condition or covenant has been complied with.
SECTION 14.08 Payments on Business Days.
Except as provided pursuant to Section 2.01 pursuant to a Board Resolution, and as set forth in an Officer’s Certificate, or
established in one or more indentures supplemental to this Indenture, in any case where the date of maturity of interest or principal of any Security or the date of redemption of any Security shall not be a Business Day, then payment of interest or
principal, and premium, if any, may be made on the next succeeding Business Day with the same force and effect as if made on the nominal date of maturity or redemption, and no interest shall accrue on such payment for the period after such nominal
date.
SECTION 14.09 Conflict with Trust Indenture Act.
If and to the extent that any provision of this Indenture limits, qualifies or conflicts with the duties imposed by Sections 310 to 317,
inclusive, of the Trust Indenture Act, such imposed duties shall control.
SECTION 14.10 Counterparts.
This Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together
constitute but one and the same instrument. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission
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shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto
transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION
14.11 Separability.
In case any one or more of the provisions contained in this Indenture or in the Securities of
any series shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Indenture or of such Securities, but this Indenture and
such Securities shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
SECTION 14.12 Assignment.
The Company will have the right at all times to assign any of its rights or obligations under this Indenture to a direct or indirect wholly
owned subsidiary of the Company, provided that, in the event of any such assignment, the Company, will remain liable for all such obligations. Subject to the foregoing, this Indenture is binding upon and inures to the benefit of the parties thereto
and their respective successors and assigns. This Indenture may not otherwise be assigned by the parties thereto.
SECTION
14.13 Acknowledgment of Rights.
If an Event of Default has occurred and is continuing and such event is
attributable to the failure of the Company to pay interest or principal on the applicable series of Securities on the date such interest or principal is otherwise payable (or in the case of redemption, on the redemption date), the Company
acknowledges that a holder of Preferred Securities may directly institute a proceeding for enforcement of payment to such holder of the principal of or interest on the applicable series of Securities having a principal amount equal to the aggregate
liquidation amount of the Preferred Securities of such holder as determined after the respective due date specified in the applicable series of Securities. For the avoidance of doubt, the Trustee shall have no duty to monitor compliance or otherwise
enforce the provisions of this Section 14.13 on behalf of a holder of Preferred Securities or any other Person, and the Trustee shall have no duty ascertain the identity of holders of Preferred Securities.
SECTION 14.14 USA PATRIOT Act.
The parties hereto acknowledge that in accordance with Section 326 of the USA PATRIOT Act, the Trustee, like all financial institutions,
and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
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SECTION 14.15 Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of
or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and
interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances.
SECTION 14.16 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
53
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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ATHENE HOLDING LTD.
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By:
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/s/ John L. Golden
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Name: John L. Golden
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Title: Executive Vice President, Legal
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U.S. BANK NATIONAL ASSOCIATION
as
Trustee
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By:
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/s/ Bradley E. Scarbrough
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Name: Bradley E. Scarbrough
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Title: Vice President
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Exhibit 4.2
FIRST SUPPLEMENTAL
INDENTURE
between
ATHENE HOLDING LTD.,
as
Issuer,
and
U.S.
BANK NATIONAL
ASSOCIATION,
as Trustee
Dated as of
January 12, 2018
FIRST SUPPLEMENTAL INDENTURE, dated as of January 12, 2018 (this “
First Supplemental
Indenture
”), between Athene Holding Ltd., a Bermuda exempted company limited by shares (the “
Company
”), and U.S. Bank National Association, a national banking association, as trustee (the “
Trustee
”),
supplementing the Indenture, dated as of January 12, 2018 (the “
Original Indenture
”), between the Company and the Trustee.
RECITALS
WHEREAS, the
Company executed and delivered the Original Indenture to the Trustee to provide for the future issuance of the Company’s Securities, to be issued from time to time in one or more series as might be determined by the Company under the Original
Indenture;
WHEREAS, pursuant to the terms of the Original Indenture and this First Supplemental Indenture (together, the
“
Indenture
”), the Company desires to provide for the establishment of a new series of Securities to be known as the 4.125% Senior Notes due 2028 (the “
Notes
”), the form and substance of such Notes, and the terms,
provisions and conditions thereof to be set forth herein as provided in the Indenture;
WHEREAS, the Company has requested that the
Trustee, in respect to the Notes, execute and deliver this First Supplemental Indenture in such capacity; and
WHEREAS, all requirements
necessary to make this First Supplemental Indenture a valid instrument in accordance with its terms and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been
done and performed, and the execution and delivery of this First Supplemental Indenture has been duly authorized in all respects;
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 Indenture, the form and substance of the Notes, and the terms, provisions and conditions
thereof, the parties hereto hereby agree as follows:
ARTICLE I
NOTES
SECTION 1.01
Definitions
.
Unless the context otherwise requires or unless otherwise set forth herein:
(a) a term not defined herein that is defined in the Original Indenture, has the same meaning when used in this First Supplemental Indenture;
(b) the definition of any term in this First Supplemental Indenture that is also defined in the Original Indenture, shall for the purposes
of this First Supplemental Indenture supersede the definition of such term in the Original Indenture;
1
(c) a term defined anywhere in this First Supplemental Indenture has the same meaning throughout
this First Supplemental Indenture;
(d) the definition of a term in this First Supplemental Indenture is not intended to have any effect on
the meaning or definition of an identical term that is defined in the Original Indenture insofar as the use or effect of such term in the Original Indenture, as previously defined, is concerned;
(e) the singular includes the plural and
vice versa
;
(f) headings are for convenience of reference only and do not affect interpretation; and
(g) the following terms have the meanings given to them in this Section 1.01(g):
“
Additional Amounts
” has the meaning set forth in Section 1.11 of this First Supplemental Indenture.
“
Bermuda Business Day
” means any day other than a day on which commercial banks in Bermuda are authorized or obligated by law, executive
order or regulation to close.
“
Business Day
” means any day other than a day on which the federal or state banking institutions in the
Borough of Manhattan, The City of New York, are authorized or obligated by law, executive order or regulation to close.
“
Calculation
Agent
” means an investment banking institution of national standing appointed by the Company.
“
Change in Tax Law
” has the
meaning set forth in Section 1.10(a) of this First Supplemental Indenture.
“
Code
” means the Internal Revenue Code of 1986, as
amended.
“
Comparable Treasury Issue
” means, with respect to any Redemption Date, the U.S. Treasury security selected by the Calculation
Agent as having a maturity comparable to
the Remaining Life 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 Life.
“
Comparable Treasury Price
”
means, with respect to any Redemption Date, (A) the average of three Reference Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (B) if the Calculation
Agent obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations.
“
FATCA
” has the meaning
set forth in Section 1.11(a) of this First Supplemental Indenture.
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“
Interest Payment Date
” means January 12 and July 12 of each year, commencing
July 12, 2018.
“
IRS
” means the Internal Revenue Service of the United States of America.
“
Make-Whole Redemption Amount
” means the sum, as calculated by the Calculation Agent, of the present values of the remaining scheduled
payments of principal of and interest on the Notes to be redeemed (not including any portion of those payments of interest accrued as of any Redemption Date), discounted from their scheduled payment dates to such Redemption Date on a semi-annual
basis (assuming a
360-day
year consisting of twelve
30-day
months) at the Treasury Rate plus 25 basis points, plus accrued and unpaid interest thereon to, but excluding,
such Redemption Date.
“
Original Issue Date
” means January 12, 2018.
“
Primary Treasury Dealer
” means a primary U.S. government securities dealer in the United States of America.
“
Redemption Date
” means the date fixed for the redemption of the Notes by or pursuant to the Indenture.
“
Regular Record Date
” means, with respect to each Interest Payment Date, the close of business on the preceding December 28 or
June 27, as the case may be (whether or not a Business Day).
“
Reference Treasury Dealers
” means Barclays Capital Inc., Goldman
Sachs & Co. LLC and Wells Fargo Securities, LLC, and their respective successors; provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer the Company shall substitute therefor another Primary Treasury
Dealer.
“
Reference Treasury Dealer Quotations
” means, with respect to each Reference Treasury Dealer and any Redemption Date, the
average, as determined by the Calculation Agent, of the bid and ask prices for the Comparable Treasury Issue (expressed, in each case, as a percentage of its principal amount) quoted in writing to the Calculation Agent by such Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third Business Day immediately preceding such Redemption Date.
“
Relevant Taxing
Jurisdiction
” has the meaning set forth in Section 1.11 of this First Supplemental Indenture.
“
Remaining Life
” means the
term remaining from a Redemption Date to the Stated Maturity Date.
“
Restricted Subsidiary
” has the meaning set forth in
Section 1.12(a) of this First Supplemental Indenture.
“
Special Mandatory Redemption Date
” means the 30th day (or if such day is not
a Business Day, the first Business Day thereafter) following the termination of the Transaction.
“
Special Mandatory Redemption Price
”
means 101% of the aggregate principal amount of the Notes, together with accrued and unpaid interest to but excluding the Special Mandatory Redemption Date.
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“
Stated Maturity Date
” means January 12, 2028.
“
Tax Redemption
” has the meaning set forth in Section 1.10(a) of this First Supplemental Indenture.
“
Tax Redemption Date
” has the meaning set forth in Section 1.10(b) of this First Supplemental Indenture.
“
Transaction
” means, collectively, the (i) entry into an agreement between the Company and Voya Financial, Inc. to reinsure
approximately $19 billion of fixed and fixed indexed annuity liabilities, (ii) purchase of Voya Insurance and Annuity Company (“
VIAC
”), including its closed block variable annuity segment, by a consortium of investors, and
the creation of a newly formed standalone entity (“
Venerable
”) that will be the holding company to VIAC, and (iii) $75 million minority equity investment by the Company in VA Capital Company LLC, the parent of Venerable, and a
debt financing by the Company of $150 million to Venerable, in each case subject to certain closing adjustments.
“
Treasury Rate
”
means, with respect to any applicable Redemption Date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable Treasury Issue, calculated or interpolated (on a day count basis) 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 immediately preceding such Redemption Date.
SECTION 1.02
Establishment
.
(a) There is hereby established a new series of Securities to be issued under the Indenture, to be designated as the Company’s 4.125%
Senior Notes due 2028.
(b) There are to be authenticated and delivered the Notes, initially limited in aggregate principal amount to
$1,000,000,000, and no further Notes shall be authenticated and delivered except as provided by Sections 2.05, 2.07, 2.11, 3.03 or 9.04 of the Original Indenture;
provided
,
however
, that the aggregate principal amount of the Notes may
be increased in the future with no limit, without the consent of the holders of the Notes, on the same terms and with the same CUSIP and ISIN numbers as the Notes, except for the issue price, Original Issue Date and, if applicable, the first
Interest Payment Date and the initial interest accrual date;
provided
,
that no Event of Default with respect to the Notes shall have occurred and be continuing. The Notes shall be issued in fully registered form. Any additional Notes
having such similar terms shall constitute a single series of debt securities with the Notes under the Indenture. Notwithstanding the foregoing, if any of such additional Notes are not issued in a “qualified reopening” or are not treated
as part of the same issue as the Notes for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP and ISIN number.
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(c) The Notes shall be issued in the form of one or more Global Securities, registered in the
name of the Depositary or its nominee. Each Global Security and the Trustee’s certificate of authentication thereof shall be in substantially the form set forth in
Exhibit A
hereto.
(d) Each Note shall be dated the date of authentication thereof and shall bear interest from the Original Issue Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for.
SECTION 1.03
Payment of Principal and Interest
.
(a) The principal amount of the Notes shall be due at the Stated Maturity Date. The unpaid principal amount of the Notes shall bear interest at
the rate of 4.125% per year until paid or duly provided for. Interest on the Notes shall be paid semi-annually in arrears on each Interest Payment Date, commencing July 12, 2018, to the Person in whose name the Notes are registered on the
Regular Record Date for such Interest Payment Date;
provided
, that interest payable at the Stated Maturity Date or upon redemption shall be paid to the Person to whom principal is payable. Any such interest that is not so punctually paid or
duly provided for shall forthwith cease to be payable to the holders on such Regular Record Date and may be paid as provided in Section 2.03 of the Original Indenture.
(b) Payments of interest on the Notes shall include interest accrued to but excluding the respective Interest Payment Date. Interest payments
for the Notes shall be computed and paid on the basis of a
360-day
year consisting of twelve
30-day
months.
(c) In the event that any date on which interest is payable on the Notes is not both a Business Day and a Bermuda Business Day, then payment of
the interest payable on such date shall be made on the next succeeding Business Day that is a Bermuda Business Day (and without any interest or other payment in respect of any such delay), with the same force and effect as if made on the date the
payment was originally payable.
(d) The Trustee is hereby designated as Paying Agent for the Notes and all payments of the principal of,
and premium, if any, and interest due on the Notes at the Stated Maturity Date or upon redemption shall be made upon surrender of the Notes at the Corporate Trust Office of the Trustee.
(e) The principal of, and premium, if any, any Additional Amounts, and interest due on the Notes shall be paid 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. Payments of interest (including payments of interest on any Interest Payment Date) shall be made, subject to such surrender where applicable
and subject, in the case of a Global Security, to the Trustee’s arrangements with the Depositary, at the option of the Company, (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security
Register, or (ii) by wire transfer at such place and to such account at a banking institution in the United States of America as may be designated in writing to the Trustee at least 15 days prior to the date for payment by the Person entitled
thereto.
SECTION 1.04
Denominations
. The Notes shall be issued in minimum denominations of $2,000 and integral multiples of $1,000
in excess thereof.
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SECTION 1.05
Global Securities
.
(a) Except under the limited circumstances described below, the Notes represented by Global Securities shall not be exchangeable for, and shall
not otherwise be issuable as, Notes in definitive form. The Global Securities described above may not be transferred except by the Depositary to a nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of
the Depositary or to a successor Depositary or its nominee.
(b) Except as otherwise provided in this First Supplemental Indenture, owners
of beneficial interests in such Global Securities shall not be considered the holders thereof for any purpose under the Indenture, and no Global Security representing a Note shall be exchangeable, except for another Global Security of like
denomination and to be registered in the name of the Depositary or its nominee or to a successor Depositary or its nominee. The rights of holders of such Global Securities shall be exercised only through the Depositary.
(c) A Global Security shall be exchangeable in whole or, from time to time, in part for Notes in definitive registered form only as provided in
the Indenture. If (i) at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for the Notes or if at any time the Depositary shall no longer be registered or in good standing as a “clearing
agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, at such time as the Depositary is required to be so registered, and the Depositary
so notifies the Company and, in each case, the Company does not appoint a successor Depositary within 90 days after the Company receives such notice or becomes aware of such condition, as the case may be, (ii) any Event of Default or Default
has occurred and is continuing with respect to the Notes or (iii) subject to the procedures of the Depositary, the Company in its sole discretion determines that the Notes shall be exchangeable for Notes in definitive registered form and
executes and, in each case, delivers to the Security Registrar a written order of the Company providing that the Notes shall be so exchangeable, the Notes shall be exchangeable for Notes in definitive registered form;
provided
,
that
the definitive Notes so issued in exchange for the Notes shall be in minimum denominations of $2,000, or any integral multiple of $1,000 in excess thereof, and be of like aggregate principal amount and tenor as the portion of the Notes to be
exchanged. Except as provided herein, owners of beneficial interests in the Notes shall not be entitled to have Notes registered in their names, shall not receive or be entitled to physical delivery of Notes in definitive registered form and shall
not be considered the holders thereof for any purpose under the Indenture. Neither the Company, the Trustee, any Paying Agent nor the Security Registrar shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests in the Notes, or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests. Any Global Security that is exchangeable pursuant to this Section 1.05(c)
shall be exchangeable for Notes registered in such names as the Depositary shall direct.
SECTION 1.06
Transfer
. The Trustee is
hereby designated as Security Registrar for the Notes. No service charge shall be made for any registration of transfer or exchange of Notes, but payment may be required of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith.
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SECTION 1.07
Defeasance
. The provisions of Sections 13.02 and 13.03 of the Original
Indenture shall apply to the Notes.
SECTION 1.08
Special Mandatory Redemption by the Company
. If, for any reason, the Transaction
is terminated prior to consummation, the Company shall be required to redeem all, but not less than all, of the Notes, on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price. Notice of a special mandatory redemption shall
be mailed (or, if the Notes are represented by one or more Global Securities, transmitted in accordance with the Depositary’s standard procedures therefor), with a copy to the Trustee, promptly after the occurrence of the event triggering such
redemption to each holder of Notes at its registered address. If funds sufficient to pay the Special Mandatory Redemption Price of the Notes to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee, in its capacity as
Paying Agent, on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes shall cease to bear interest and, other than the right to receive the Special Mandatory Redemption Price, all rights of
holders and beneficial owners under the Notes shall terminate. Upon the consummation of the Transaction, this Section 1.08 of the First Supplemental Indenture shall cease to apply to the Notes.
SECTION 1.09
Redemption at the Option of the Company
.
(a) The provisions of Sections 3.01, 3.02 (subject to Section 1.09(d) hereof) and 3.03 of the Original Indenture shall apply to the Notes.
(b) At any time and from time to time prior to October 12, 2027, the Notes shall be redeemable at the Company’s option, in whole
or in part, for cash, at a Redemption Price equal to the greater of 100% of the principal amount to be redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date and the Make-Whole Redemption Amount.
(c) At any time and from time to time on or after October 12, 2027, the Notes shall be redeemable at the Company’s option, in whole
or in part, for cash, at a Redemption Price equal to 100% of the principal amount to be redeemed plus accrued and unpaid interest thereon to, but excluding, the Redemption Date.
(c) The Company shall mail or caused to be mailed (or, if the Notes are represented by one or more Global Securities, notice of any redemption
pursuant to this Section 1.09 transmitted in accordance with the Depositary’s standard procedures therefor) at least 30 days, but not more than 90 days, before the Redemption Date, to each holder of the Notes to be redeemed at the
holder’s address appearing in the Security Register, with a copy to the Trustee. Unless the Company defaults in payment of the Redemption Price, on or after the Redemption Date, interest shall not accrue on the Notes called for redemption.
(d) Notwithstanding Section 3.02 of the Original Indenture, the notice of redemption with respect to any redemption pursuant to this
Section 1.09 need not set forth the Redemption Price but only the manner of calculation thereof as described above.
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(e) The Company shall notify the Trustee of the Redemption Price with respect to any redemption
pursuant to this Section 1.09 promptly after the calculation thereof. The Trustee shall not be responsible for calculating said Redemption Price.
(f) If less than all of the Notes are to be redeemed, the Trustee shall select the Notes or portions of the Notes to be redeemed by such method
as the Trustee shall deem fair and appropriate, subject in all cases to applicable procedures of the Depositary. The Trustee may select for redemption Notes and portions of Notes in amounts of $1,000 and integral multiples of $1,000 in excess
thereof (
provided
,
that the unredeemed portion of any Note to be redeemed in part shall not be less than $2,000) and shall thereafter promptly notify the Company in writing of the numbers of Notes to be redeemed, in whole or in part;
provided
, that if the Notes are represented by one or more Global Securities, interests in such Global Securities shall be selected for redemption by the Depositary in accordance with its standard procedures therefor.
SECTION 1.10
Optional Redemption for Changes in Tax Law
.
(a) The Company may redeem all, but not less than all, of the Outstanding Notes, for cash, at its option upon not less than 30 days, and no
more than 75 days, notice to the Trustee, the Paying Agent and each holder of such Notes (which notice shall be irrevocable) (a “
Tax Redemption
”), if: (i) on the next date on which any amount would be payable or deliverable in
respect of such Notes, the Company is or would be required to pay Additional Amounts; (ii) the Company cannot avoid any such payment obligation by taking commercially reasonable measures available to it; and (iii) the requirement to pay
Additional Amounts arises as a result of: (A) any amendment to, or change in, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction, which change or amendment is announced on or after the Original Issue
Date of such Notes (or, if the Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Original Issue Date of the Notes, such later date); or (B) any amendment to, or change in, an official interpretation or
application or administration of such laws, regulations or rulings (including by virtue of a holding, judgment, order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change is announced on or
after the Original Issue Date of such Notes (or, if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Original Issue Date of the Notes, such later date) (each of clause (A) and (B), a
“
Change in Tax Law
”).
(b) The Redemption Price for a Tax Redemption shall equal 100% of the principal amount of the Notes
to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (the “
Tax Redemption Date
”) (unless the Tax Redemption Date falls after a Regular Record Date but on or prior to the
immediately succeeding interest payment date, in which case the Company shall pay the full amount of accrued and unpaid interest to the holder of record as of the close of business on such Regular Record Date, and the Redemption Price shall be equal
to 100% of the principal amount of the Notes to be redeemed). For the avoidance of doubt, the Redemption Price shall include all Additional Amounts (if any) with respect to such Redemption Price. The Tax Redemption Date must be a Business Day and a
Bermuda Business Day and must not be on or after the 30th day immediately preceding the Stated Maturity Date.
(c) The Company shall not
give any notice of a Tax Redemption earlier than 90 days prior to the earliest date on which the Company would be obligated to make payment of any Additional Amounts or withholding if a payment or delivery were then due.
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(d) Simultaneously with providing notice of a Tax Redemption, the Company shall issue a press
release announcing such Tax Redemption. Prior to the publication or delivery of any notice of Tax Redemption of the Notes pursuant to the foregoing, the Company shall deliver to the Trustee (i) an Officer’s Certificate stating that the
obligation to pay such Additional Amounts cannot be avoided by the Company taking commercially reasonable measures available to it; and (ii) an Opinion of Counsel delivered by independent tax counsel to the effect that the Company has or will
become obligated to pay such Additional Amounts as a result of a Change in Tax Law. The Trustee shall accept and rely upon such certificate and opinion (without further investigation or inquiry) and it shall be conclusive and binding on the holders
and beneficial owners of the Notes.
(e) Notwithstanding the foregoing, if the Company has given notice of a Tax Redemption, each holder of
the Notes subject to Tax Redemption shall have the right to elect that such holder’s Notes shall not be subject to such Tax Redemption. If a holder elects not to be subject to a Tax Redemption, the Company shall not be required to pay
Additional Amounts with respect to payments made in respect of such holder’s Notes following the Tax Redemption Date solely as a result of the relevant Change in Tax Law. In such case, all subsequent payments in respect of such holder’s
Notes shall be subject to any tax required to be withheld or deducted under the laws of a Relevant Taxing Jurisdiction as a result of the relevant Change in Tax Law. The obligation to pay Additional Amounts to any electing holder for payments made
in periods prior to the Tax Redemption Date will remain, subject to the exceptions set forth below under “Additional Amounts.” A holder of the Notes must exercise his, her or its option to elect to avoid a Tax Redemption by written notice
to the Trustee delivered in accordance with the Depositary’s standard procedures therefor no later than the 15th day prior to the Tax Redemption Date.
(f) No Notes shall be redeemed if the principal amount of the Notes has been accelerated, and such acceleration has not been rescinded, on or
prior to the Tax Redemption Date (except in the case of an acceleration resulting from a default by the Company in the payment of the Redemption Price).
SECTION 1.11
Additional Amounts
. All payments made by, or on behalf of, the Company under or with respect to the Notes, including, but
not limited to, payments of principal (including, if applicable, any Redemption Price) and payments of interest, shall be made without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature, unless such withholding or deduction is required by law. In the event that any such taxes, duties, assessments or governmental charges imposed or levied by or within any jurisdiction in which the Company or any successor
is, for tax purposes, organized or resident or doing business or through which any payment is made or deemed made (or any political subdivision or taxing authority thereof or therein) (each, as applicable, a “
Relevant Taxing
Jurisdiction
”) are required to be withheld or deducted from any payments made by the Company or its Paying Agent with respect to the Notes, the Company shall pay to the holder, of the Notes such Additional Amounts (the “
Additional
Amounts
”) as may be necessary to ensure that the net amount received by the beneficial owner after such withholding or deduction (and after deducting any taxes on the Additional Amounts) shall equal the amounts that would have been received
by such beneficial owner had no such withholding or deduction been required; provided, that no Additional Amounts shall be payable:
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(a) for or on account of:
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(i)
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any tax, duty, assessment or other governmental charge that would not have been imposed but for:
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(A)
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the existence of any present or former connection between the holder or beneficial owner of such Note and the Relevant Taxing Jurisdiction, other than merely holding or enforcing rights under such Note or the receipt of
payments or deliveries thereunder;
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(B)
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the presentation of such Note (in cases in which presentation is required) more than 30 days after the later of (I) the date on which the payment of the principal of (including the Redemption Price, if applicable)
and interest on such Note became due and payable pursuant to the terms thereof or (II) the date on which such payment was made or duly provided for, except to the extent that the holder or beneficial owner of such Note would have been entitled
to such Additional Amounts on presenting such Note for payment on the last date of such period of 30 days; or
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(C)
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the failure of the holder or beneficial owner to comply with a timely request from the Company, addressed to the holder, to provide certification, information, documents or other evidence concerning such holder’s
or beneficial owner’s nationality, residence, identity or connection with the Relevant Taxing Jurisdiction, or to make any declaration or satisfy any other reporting requirement relating to such matters, if and to the extent that due and timely
compliance with such request is required by statute, regulation or administrative practice of the Relevant Taxing Jurisdiction in order to reduce or eliminate any withholding or deduction as to which Additional Amounts would have otherwise been
payable to such holder or beneficial owner;
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(ii)
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any estate, inheritance, gift, value added, use, sales, transfer, excise, personal property or similar tax, assessment or other governmental charge;
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(iii)
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any tax, duty, assessment or other governmental charge that is payable otherwise than by withholding from payments or deliveries under or with respect to the Notes;
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(iv)
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any tax, assessment, withholding or deduction required by sections 1471 through 1474 of the Code or any current or future U.S. Treasury Regulations or rulings promulgated thereunder (“
FATCA
”), any law,
regulation or other official guidance enacted in any jurisdiction implementing FATCA, any intergovernmental agreement between the United States of America and any other jurisdiction to implement FATCA or any law enacted by such other jurisdiction to
give effect to such agreement, or any agreement with the IRS under FATCA;
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(v)
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any tax, assessment or other governmental charge imposed in connection with a Note presented for payment (where presentation is required for payment) by or on behalf of a holder or beneficial owner who would have been
able to avoid such tax, assessment or governmental charge by presenting the relevant Note to, or otherwise accepting payment or delivery from, another paying agent or conversion agent; or
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(vi)
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any combination of taxes referred to in the preceding clauses (i), (ii), (iii), (iv) or (v); or
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(b) with respect to any payment of the principal of (including the Redemption Price, if applicable) and interest on such Note, if the holder is
a fiduciary, partnership or person other than the sole beneficial owner of that payment or delivery to the extent that such payment or delivery would be required to be included in the income under the laws of the Relevant Taxing Jurisdiction, for
tax purposes, of a beneficiary or settlor with respect to the fiduciary, a partner or member of that partnership or a beneficial owner who would not have been entitled to such Additional Amounts had that beneficiary, settlor, partner, member or
beneficial owner been the holder thereof.
(c) The payment of principal of (including the Redemption Price, if applicable) or the payment
of interest on any Note or other amount payable with respect to such Note shall be deemed to include payment of Additional Amounts provided for in the Indenture to the extent that Additional Amounts are, were or would be payable in respect thereof.
(d) If the Company is required to make any deduction or withholding from any payments or deliveries with respect to the Notes pursuant to
this Section 1.11 herein, the Company shall deliver to the Trustee and the holders official tax receipts evidencing the remittance to the relevant tax authorities of the amounts so withheld or deducted.
SECTION 1.12
Covenants
.
(a) So long as any Notes are outstanding, neither the Company nor any of its subsidiaries shall create, assume, incur or guarantee any
indebtedness for borrowed money which is secured by a mortgage, pledge, lien, security interest or other encumbrance on any capital stock of: (i) any subsidiary that, as of the end of the Company’s most recently completed fiscal year, was
a Significant Subsidiary (as defined in Rule
1-02(w)
of Regulation
S-X
promulgated by the Commission); and (ii) any successor to substantially all of the business
of any subsidiary in clause (i) of this Section 1.12(a) which is also a Subsidiary of the Company (each person or successor referred to in clauses (i) and (ii) of this Section 1.12(a), a “
Restricted Subsidiary
”);
provided
,
however
, this Section 1.12(a) shall not apply if the Notes then outstanding are secured at least equally and ratably with the secured and outstanding indebtedness otherwise prohibited by this Section 1.12(a). If the
Company shall hereafter be required to secure the Notes equally and ratably with any other indebtedness pursuant to this Section 1.12(a), (i) the Company will promptly deliver to the Trustee an Officer’s Certificate stating that the
foregoing covenant has been complied with and (ii) the Trustee is hereby authorized to enter into an indenture or agreement supplemental hereto and to take such action to enable it to enforce the rights of the holders of the Notes so secured.
11
(b) So long as any Notes are outstanding and subject to Article X of the Original Indenture,
neither the Company nor any of its Subsidiaries shall sell or otherwise dispose of any shares of capital stock (other than preferred stock having no voting rights of any kind) of any Restricted Subsidiary except for: (i) a sale or other
disposition of any of such stock to a wholly-owned subsidiary of the Company; (ii) a sale or other disposition of all of a Subsidiary’s stock for at least fair value (as determined by the Board of Directors acting in good faith); or
(iii) a sale or other disposition required to comply with an order of a court or regulatory authority of competent jurisdiction, other than an order issued at the request of the Company or the request of any of the Company’s Subsidiaries.
(c) Clause (a) of Section 10.01 of the Original Indenture is amended by inserting the phrase “is a corporation organized
and validly existing under the laws of Bermuda, the United States of America, any State thereof or the District of Columbia and”
between the phrases “if other than the Company” and
“shall expressly assume by an indenture supplemental hereto.”
SECTION 1.13
No Sinking Fund
. None of the Notes shall be
entitled to any sinking fund and the provisions of Section 3.04, 3.05 and 3.06 shall not apply to the Notes.
ARTICLE II
MISCELLANEOUS PROVISIONS
This First
Supplemental Indenture shall become effective upon its execution and delivery.
SECTION 2.01
Notes Unaffected by Other Supplemental
Indentures
. To the extent the terms of the Original Indenture are amended by any other supplemental indentures, no such amendment shall relate or apply to the Notes, except to the extent such supplemental indenture is permitted by the Indenture
and by its terms applies to the Notes. To the extent the terms of the Original Indenture are amended as provided herein, no such amendment shall in any way affect the terms of any such other supplemental indenture or any other series of Securities.
This First Supplemental Indenture shall relate and apply solely to the Notes.
SECTION 2.02
Trustee Not Responsible for Recitals
.
The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this First Supplemental
Indenture or the Notes.
SECTION 2.03
Ratification and Incorporation of Original Indenture
. As supplemented hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 2.04
Governing Law
. This First Supplemental Indenture and the Notes shall be deemed to be a contract made under the internal
laws of the State of New York, and for all purposes shall be construed in accordance with the laws of said State.
SECTION 2.05
Severability
. In case any one or more of the provisions contained in this First Supplemental Indenture or in the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this First Supplemental Indenture or of the Notes, but this First Supplemental Indenture and the Notes shall be construed as if such invalid or illegal or unenforceable provision had never
been contained herein or therein.
12
SECTION 2.06
Executed in Counterpart
s
. This First Supplemental Indenture may be
executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. The exchange of copies of this First Supplemental Indenture and of signature pages by
facsimile or PDF transmission shall constitute effective execution and delivery of this First Supplemental Indenture as to the parties hereto and may be used in lieu of the original First Supplemental Indenture for all purposes. Signatures of the
parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
SECTION 2.07
Trust
Indenture Act Controls
. If any provision of this First Supplemental Indenture limits, qualifies or conflicts with another provision hereof which is required to be included in this First Supplemental Indenture by any of the provisions of the
Trust Indenture Act, such required provision shall control.
13
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed by their respective officers thereunto duly authorized, all as of the day and year first above written.
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ATHENE HOLDING LTD.,
as
Issuer
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By:
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/s/ John L. Golden
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Name:
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John L. Golden
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Title:
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Executive Vice President, Legal
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U.S. BANK NATIONAL ASSOCIATION,
as
Trustee
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By:
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/s/ Bradley E. Scarbrough
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Name:
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Bradley E. Scarbrough
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Title:
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Vice President
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Signature Page to First Supplemental Indenture
EXHIBIT A
(FORM OF 4.125% SENIOR NOTES DUE 2028)
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO. UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (“DTC”), A NEW YORK CORPORATION, TO ATHENE HOLDING LTD. OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF
CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 1.05 OF THE FIRST SUPPLEMENTAL INDENTURE, THIS NOTE MAY BE TRANSFERRED IN WHOLE, BUT NOT IN PART,
ONLY TO DTC, TO ANOTHER NOMINEE OF DTC OR TO A SUCCESSOR DEPOSITARY OR TO A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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No. [•]
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CUSIP No.: 04686JAA9
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ISIN No.: US04686JAA97
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ATHENE HOLDING LTD.
Global Certificate initially representing
$ aggregate principal amount of
4.125% Senior Notes due 2028
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Regular Record Date:
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With respect to each Interest Payment Date, the close of business on the preceding December 28 or June 27, as the case may be (whether or not a Business Day).
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Original Issue Date:
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January 12, 2018
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Stated Maturity Date:
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January 12, 2028
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Interest Payment Dates:
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January 12 and July 12 of each year, commencing July 12, 2018
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Interest Rate:
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4.125% per year
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Authorized Denomination: $2,000, or any integral multiple of $1,000 in excess thereof.
This Global Certificate is in respect of a duly authorized issue of 4.125% Senior Notes due 2028 (the “
Notes
”) of Athene
Holding Ltd., a Bermuda exempted company limited by shares (the “
Company
,” which term includes any successor corporation under the Indenture referred to on the reverse hereof). The Company, for value received, hereby promises to pay
to Cede & Co., or registered assigns, the amount of principal of the Notes represented by this Global Certificate on the Stated Maturity Date (unless redeemed prior to such date) shown above, and to pay interest thereon from the Original
Issue Date shown above, or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on each Interest Payment Date as specified above, commencing July 12, 2018, and on the Stated
Maturity Date at the Interest Rate per year shown above until the principal hereof is paid or made available for payment and on any overdue principal and on any overdue installment of interest at such rate to the extent permitted by law. As provided
in this Note, the Company under certain circumstances would be required to pay Additional Amounts to the holders of the Notes. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date (other than an Interest
Payment Date that is the Stated Maturity Date or any Redemption Date) shall, as provided in the Indenture, be paid to the Person in whose name this Note is registered at the close of business on the Regular Record Date as specified above next
preceding such Interest Payment Date;
provided
,
that any interest payable at the Stated Maturity Date or on any Redemption Date shall be paid to the Person to whom principal is payable. Any such interest that is not so punctually paid
or duly provided for shall forthwith cease to be payable to the holders on such Regular Record Date and may be paid as provided in Section 2.03 of the Original Indenture.
Payments of interest on this Note shall include interest accrued to but excluding the respective
Interest Payment Dates. Interest payments for this Note shall be computed and paid on the basis of a
360-day
year consisting of twelve
30-day
months. In the event that
any date on which interest is payable on this Note is not both a Business Day and Bermuda Business Day, then payment of the interest payable on such date shall be made on the next succeeding Business Day that is a Bermuda Business Day (and without
any interest or other payment in respect of any such delay), with the same force and effect as if made on the date the payment was originally payable.
Payment of the principal of, and premium, if any, any Additional Amounts, and interest due on this Note at the Stated Maturity Date or upon
redemption shall be made upon surrender of this Note at the Corporate Trust Office of the Trustee. The principal of, and premium, if any, any Additional Amounts, and interest due on this Note shall be paid 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. Payment of interest (including payments of interest on any Interest Payment Date) shall be made, subject to such surrender where applicable and
subject to the Trustee’s arrangements with the Depositary, at the option of the Company, (i) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (ii) by wire transfer
at such place and to such account at a banking institution in the United States of America as may be designated in writing to the Trustee at least 15 days prior to the date for payment by the Person entitled thereto.
The Notes shall rank senior in right of payment to any of the Company’s indebtedness that is expressly subordinated in right of payment
to the Notes; equal in right of payment to any of its liabilities that are not so subordinated; effectively junior in right of payment to any of its secured indebtedness to the extent of the value of the assets securing such indebtedness.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes referred to in the within mentioned Indenture.
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U.S. BANK NATIONAL ASSOCIATION
as
Trustee
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Dated:
REVERSE OF NOTE
1. This Note is one of a duly authorized issue of senior debt securities of the Company (the “
Securities
”) issued and issuable
in one or more series under an Indenture dated as of January 12, 2018 (the “
Original Indenture
”), as supplemented by the First Supplemental Indenture, dated as of January 12, 2018 (the “
First Supplemental
Indenture
,” and together with the Original Indenture, the “
Indenture
”), between the Company and U.S. Bank National Association, as trustee (the “
Trustee
,” which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the holders of the
Notes issued thereunder and of the terms upon which said Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof as the 4.125% Senior Notes due 2028, initially limited in aggregate
principal amount of $1,000,000,000, and no further Notes shall be authenticated and delivered except as provided by Sections 2.05, 2.07, 2.11, 3.03 or 9.04 of the Original Indenture;
provided
,
however
, that the aggregate principal
amount of the Notes may be increased in the future with no limit, without the consent of the holders of the Notes, on the same terms and with the same CUSIP and ISIN numbers as the Notes, except for the issue price, Original Issue Date and, if
applicable, the first Interest Payment Date and the initial interest accrual date;
provided
,
that no Event of Default with respect to the Notes shall have occurred and be continuing. The Notes shall be issued in fully registered form.
Any additional Notes having such similar terms shall constitute a single series of debt securities with the Notes under the Indenture;
provided
, that if any of such additional Notes are not issued in a “qualified reopening” or are
not treated as part of the same issue as the Notes for U.S. federal income tax purposes, such additional Notes shall have a separate CUSIP and ISIN number. Capitalized terms used herein for which no definition is provided herein shall have the
meanings set forth in the Indenture.
2. This Note is exchangeable in whole or, from time to time, in part for Notes in definitive
registered form only as provided herein and in the Indenture. If (a) at any time the Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this Note or if at any time the Depositary shall no longer be
registered or in good standing as a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934, as amended, or other applicable statute or regulation, at such time as the Depositary
is required to be so registered, and the Depositary so notifies the Company and, in each case, the Company does not appoint a successor Depositary within 90 days after the Company receives such notice or becomes aware of such condition, as the case
may be, (b) any Event of Default or Default has occurred and is continuing with respect to the Notes or (c) subject to the procedures of the Depositary, the Company in its sole discretion determines that this Note shall be exchangeable for
Notes in definitive registered form and executes and delivers to the Security Registrar a written order of the Company providing that this Note shall be so exchangeable, this Note shall be exchangeable for Notes in definitive registered form;
provided
that the definitive Notes so issued in exchange for this Note shall be in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof, and be of like aggregate principal amount and tenor as the portion
of this Note to be exchanged. Except as provided above or in the First Supplemental Indenture, owners of beneficial interests in this Note shall not be entitled to have Notes registered in their names, shall not receive or be entitled to physical
delivery of Notes in definitive registered form and shall not be considered the holders thereof for any purpose under the Indenture. Neither the Company, the Trustee, any Paying Agent nor the Security Registrar
shall have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in this Note, or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests. Any Global Security that is exchangeable pursuant to Section 1.05(c) of the First Supplemental Indenture shall be exchangeable for Notes registered in such names as the
Depositary shall direct.
3. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may
be declared due and payable in the manner, with the effect and subject to the conditions provided in the Indenture.
4. The Indenture
permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities under the Indenture at any time by the Company and the
Trustee with the consent of the holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the holders of specified
percentages in principal amount of the Notes at the time Outstanding, on behalf of the holders of all Notes, to waive compliance by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this Note.
5. The Indenture contains provisions for defeasance
at any time of (a) the entire indebtedness of the Company pursuant to this Note and (b) restrictive covenants and the related Events of Default, upon compliance by the Company with certain conditions set forth therein, which provisions
apply to this Note.
6. If, for any reason, the Transaction is terminated prior to consummation, the Company shall be required to redeem
all, but not less than all, of the Notes, on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price. Notice of a special mandatory redemption shall be mailed (or, if the Notes are represented by one or more Global
Securities, transmitted in accordance with the Depositary’s standard procedures therefor), with a copy to the Trustee, promptly after the occurrence of the event triggering such redemption to each holder of Notes at its registered address. If
funds sufficient to pay the Special Mandatory Redemption Price of the Notes to be redeemed on the Special Mandatory Redemption Date are deposited with the Trustee, in its capacity as Paying Agent, on or before such Special Mandatory Redemption Date,
on and after such Special Mandatory Redemption Date, the Notes shall cease to bear interest and, other than the right to receive the Special Mandatory Redemption Price, all rights of holders and beneficial owners under the Notes shall terminate.
Upon the consummation of the Transaction, the foregoing provisions shall cease to apply to this Note.
7. (a) At any time and from time to
time prior to October 12, 2027, this Note shall be redeemable at the Company’s option, in whole or in part, for cash, at a Redemption Price equal to the greater of 100% of the principal amount to be redeemed plus accrued and unpaid
interest thereon to, but excluding, such Redemption Date and the Make-Whole Redemption Amount.
(b) At any time and from time to time on or after October 12, 2027, this Note shall be
redeemable at the Company’s option, in whole or in part, for cash, at a Redemption Price equal to 100% of the principal amount to be redeemed plus accrued and unpaid interest thereon to, but excluding, such Redemption Date.
8. (a) The Company may redeem all, but not less than all, of the outstanding Notes for cash at its option upon not less than 30 days, and no
more than 75 days, notice to the Trustee, the Paying Agent and each holder of such Notes (which notice shall be irrevocable) (a “
Tax Redemption
”), if: (i) on the next date on which any amount would be payable or deliverable in
respect of such Notes, the Company is or would be required to pay Additional Amounts; (ii) the Company cannot avoid any such payment obligation by taking commercially reasonable measures available to it; and (iii) the requirement to pay
Additional Amounts arises as a result of: (A) any amendment to, or change in, the laws or any regulations or rulings promulgated thereunder of a Relevant Taxing Jurisdiction, which change or amendment is announced on or after the Original Issue
Date of such Notes (or, if the Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Original Issue Date of the Notes, such later date); or (B) any amendment to, or change in, an official interpretation or
application or administration of such laws, regulations or rulings (including by virtue of a holding, judgment, order by a court of competent jurisdiction or a change in published administrative practice) which amendment or change is announced on or
after the Original Issue Date of such Notes (or, if the applicable Relevant Taxing Jurisdiction became a Relevant Taxing Jurisdiction on a date after the Original Issue Date of the Notes, such later date) (each of clause (A) and (B), a
“
Change in Tax Law
”).
(b) The Redemption Price for a Tax Redemption shall equal 100% of the principal amount of the Notes
to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the applicable Redemption Date (the “
Tax Redemption Date
”) (unless the Tax Redemption Date falls after a Regular Record Date but on or prior to the
immediately succeeding interest payment date, in which case the Company shall pay the full amount of accrued and unpaid interest to the holder of record as of the close of business on such Regular Record Date, and the Redemption Price shall be equal
to 100% of the principal amount of the Notes to be redeemed). For the avoidance of doubt, the Redemption Price shall include all Additional Amounts (if any) with respect to such Redemption Price. The Tax Redemption Date must be a Business Day and a
Bermuda Business Day and must not be on or after the 30th day immediately preceding the Stated Maturity Date.
9. If less than all of the
Notes are to be redeemed, the Trustee shall select the Notes or portions of Notes to be redeemed by such method as the Trustee shall deem fair and appropriate, subject in all cases to applicable procedures of the Depositary. The Trustee may select
for redemption Notes and portions of Notes in amounts of $1,000 and integral multiples of $1,000 in excess thereof (
provided
,
that the unredeemed portion of any Note to be redeemed in part shall not be less than $2,000) and shall
thereafter promptly notify the Company in writing of the numbers of Notes to be redeemed, in whole or in part;
provided
,
that if the Notes are represented by one or more Global Securities, interests in such Global Securities shall be
selected for redemption by the Depositary in accordance with its standard procedures therefor.
10. No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of, and premium, if any, and interest due on this Note at the time, place and rate, and in the coin or currency, herein prescribed.
11. (a) As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company for such purpose, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company or the
Security Registrar and duly executed by, the holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes, of authorized denominations and of like tenor and for the same aggregate principal amount, shall be issued to
the designated transferee or transferees. No service charge shall be made for any such exchange or registration of transfer, but the Company shall require payment of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
(b) Prior to due presentment of this Note for registration of transfer, the Company, the Trustee, any Paying Agent
and the Security Registrar of the Company or the Trustee shall deem and treat the Person in whose name this Note is registered as the absolute owner hereof for all purposes (subject to Section 1.03(a) of the First Supplement Indenture), whether
or not this Note be overdue and notwithstanding any notice of ownership or writing thereon made by anyone other than the Security Registrar, and neither the Company nor the Trustee nor any Paying Agent nor the Security Registrar shall be affected by
notice to the contrary. Except as provided in Section 1.03(a) of the First Supplemental Indenture, all payments of the principal of and premium, if any, and interest due on this Note made to the registered holder hereof shall, to the extent of
the amount or amounts so paid, effectually satisfy and discharge liability for moneys payable on this Note.
(c) The Notes are issuable
only in registered form without coupons in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes are exchangeable for a like
aggregate principal amount of Notes of a different authorized denomination, as requested by the holder surrendering the same upon surrender of the Note or Notes to be exchanged at the office or agency of the Company.
12. No recourse shall be had for payment of the principal of, or premium, if any, or interest on this Note, or for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture, against any incorporator, stockholder, officer or director, past, present or future, as such, of the Company or of any predecessor or successor corporation, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise, all such liability being, by the acceptance hereof and as part of the consideration for the issuance hereof, expressly waived and released.
13. This Note shall be deemed to be a contract made under the internal laws of the State of New York, and for all purposes shall be
construed in accordance with laws of said State.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM – as tenants in common
UNIF GIFT MIN ACT – Custodian Uniform Gift to Minors Act
TEN ENT – as tenants by the entireties
JT TEN – as joint tenants with right of survivorship and not as tenants in common
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE OF ASSIGNEE
(please insert Social Security or other identifying number of assignee)
the within Note an all rights thereunder, hereby irrevocably constituting and appointing
agent to transfer said Note on the books of the
Company, with full power of substitution in the premises.
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Dated:
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NOTICE: The signature to this assignment must correspond with the name as written upon the face of the within instrument in every particular without alteration or enlargement, or any change whatsoever.
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