We are offering $300,000,000 of
our 4.400% Senior Notes due 2046 (the Notes). The Notes will mature on October 1, 2046. We will pay interest on the Notes semi-annually in arrears on April 1 and October 1 of each year, beginning on April 1, 2017.
Interest on the Notes will accrue from September 20, 2016.
We may, at our option, redeem all or part of the Notes at any time at the redemption
prices described herein. In addition, we may, at our option, redeem all, but not a part, of the Notes at any time in the event of certain developments affecting United States taxation as described herein. If we experience a change of control
triggering event (as described herein), we must offer to repurchase the Notes.
The obligations under the Notes will initially be fully and
unconditionally guaranteed by certain of our subsidiaries that are obligors under Delphi Corporations outstanding notes and credit facility. The Notes and the guarantees will be general unsecured obligations of us and the guarantors,
respectively, and will rank equally in right of payment with all of our and their existing and future senior indebtedness. The Notes and the guarantees will be effectively subordinated to any of our and the guarantors existing and future
secured debt to the extent of the value of the collateral securing such indebtedness. The Notes will be structurally subordinated to all liabilities of our subsidiaries that do not issue or guarantee the Notes.
We intend to
apply to list the Notes on the New York Stock Exchange (the NYSE). We expect trading in the Notes on the NYSE to begin within 30 days after the original issue date. If such a listing is obtained, we will have no obligation to maintain
such listing, and we may delist the Notes at any time. There is currently no established trading market for the Notes.
We expect that
delivery of the Notes will be made to investors in book-entry form only through the facilities of The Depository Trust Company and its participants, including Clearstream Banking,
société anonyme
, and Euroclear Bank, S.A./N.V.,
on or about September 20, 2016.
DESCRIPTION OF NOTES
Definitions of certain terms used in this Description of Notes may be found under the heading Certain Definitions. For
purposes of this section, the term Company refers only to Delphi Automotive LLP (and its successors), our directly owned subsidiary through which we own all our businesses, and not to any of its subsidiaries; the term Issuer
refers only to Delphi Automotive PLC and not to any of its subsidiaries; the terms we, our and us refer to the Issuer and, unless the context otherwise requires, its subsidiaries. The Notes will initially be
guaranteed by the Company, Delphi Automotive Holdings US Limited (Intermediate Holdco), a direct subsidiary of the Company, and Delphi Corporation, the direct subsidiary of Intermediate Holdco. Each of the Company, Intermediate Holdco
and Delphi Corporation (and for purposes of this Description of Notes, any other guarantor of the Notes that may be added in the future) is referred to as a Guarantor and collectively as the Guarantors. Each guarantee of the
Notes by a Guarantor is termed a Note Guarantee.
We will issue the 4.400% Senior Notes due 2046 (the Notes)
pursuant to the Senior Notes Indenture, dated as of March 10, 2015 (the Base Indenture), as supplemented by a fourth supplemental indenture, to be dated as of September 20, 2016 (the Fourth Supplemental Indenture and,
together with the Base Indenture, the Indenture), among the Issuer, the Guarantors and Wilmington Trust, National Association, as trustee (the Trustee) and Deutsche Bank Trust Company Americas, as a registrar, paying agent
and authenticating agent (the Registrar and Paying Agent). The Notes will be issued as a separate series under the Indenture.
The Indenture contains provisions which define your rights under the Notes. In addition, the Indenture governs the obligations of the Issuer
and each Guarantor under the Notes. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the TIA.
The following description is meant to be only a summary of the provisions of the Indenture that we consider material. It does not restate the
terms of the Indenture in their entirety. We urge that you carefully read the Indenture because the Indenture, and not this description, governs your rights as holders. You may request copies of the Indenture at our address set forth above under the
heading Where You Can Find More Information.
Overview of the Notes
The Notes:
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will be unsecured senior obligations of the Issuer;
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will be senior in right of payment to all future subordinated obligations of the Issuer;
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will be effectively junior to all existing and future secured indebtedness of the Issuer to the extent of the value of the assets securing such secured indebtedness, and all Indebtedness, if any, of subsidiaries of the
Issuer (other than any Guarantors); and
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will be guaranteed on an unsecured senior basis by each Guarantor.
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Principal, Maturity and Interest
The Issuer will initially issue the Notes in an aggregate principal amount of $300,000,000. The Notes will mature on October 1,
2046. The Notes will bear interest at a rate of 4.400% per annum from the Issue Date or from the most recent date to which interest has been paid or provided for.
The Issuer will pay interest on the Notes semi-annually to holders of record at the close of business on the March 15 or
September 15 immediately preceding the interest payment date on April 1 and October 1 of each year.
The first interest
payment date for the Notes will be April 1, 2017. Interest will be payable on the basis of a 360-day year of twelve 30-day months.
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We will issue the Notes in fully registered form, without coupons, in minimum denominations of
$2,000 and integral multiples of $1,000 in excess of thereof.
Indenture May Be Used For Future Issuances
We may issue additional Notes of the same series as the Notes having identical terms and conditions to the
Notes that the Issuer is currently offering (the Additional Notes) under the Indenture from time to time; provided, however, that if such
Additional Notes are not fungible with the other Notes of the same series for U.S. federal income tax purposes, such Additional Notes will not have the same CUSIP number as the other Notes. Any Additional Notes will be part of the same
series as the Notes that the Issuer is currently offering and will vote on all matters with the Notes. We may also issue notes of different series under the Indenture from time to time.
Registrar and Paying Agent
The Issuer
will pay the principal of, premium, if any, and interest on the Notes at any office of the Issuer or any agency designated by the Issuer. The issuer has initially designated Deutsche Bank Trust Company Americas to act as the agent of the issuer in
such matters. The Issuer however, reserves the right to pay interest to the Holders by check mailed directly to Holders at their registered addresses or, with respect to global Notes, by wire transfer.
Holders may exchange or transfer their Notes at the Registrar and Paying Agents office. No service charge will be made for any
registration or transfer or exchange of Notes. However, the Issuer may require Holders to pay any transfer tax or other similar governmental charge payable in connection with any such transfer or exchange.
Optional Redemption
At any time prior to
April 1, 2046 (six months prior to the maturity date of the Notes), the Issuer may at its option redeem the Notes, in whole or in part, at a redemption price equal to the greater of:
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100% of the principal amount of the Notes to be redeemed; and
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the sum of the present value of (i) the redemption price (100% of the principal amount of the Notes to be redeemed) on April 1, 2046 and (ii) all required remaining scheduled interest payments due on the
Notes to be redeemed through April 1, 2046 (not including any portion of such payments of interest accrued and unpaid to the date of redemption) discounted to the date of redemption on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 30 basis points,
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plus
accrued and unpaid interest on the principal amount of
the Notes to be redeemed to, but not including, the redemption date. The Treasury Rate will be calculated on the third Business Day next preceding the date fixed for redemption (the Calculation Date).
If the Notes are redeemed at any time on or after April 1, 2046, the Notes may be redeemed at a redemption price equal to 100% of the
principal amount of the Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the redemption date.
Treasury Rate
means, with respect to any redemption date:
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the yield, under the heading which represents the average for the immediately preceding week, appearing in the
most recently published statistical release designated H.15(519) or any successor publication which is published weekly by the Board of Governors of the Federal Reserve System and which establishes yields on actively traded United States
Treasury securities adjusted to constant maturity under the caption Treasury Constant Maturities, for the maturity corresponding to the
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Comparable Treasury Issue (if no maturity is within three months before or after the Remaining Life (as defined below), yields for the two published maturities most closely corresponding to the
Comparable Treasury Issue will be determined and the Treasury Rate will be interpolated or extrapolated from such yields on a straight line basis, rounding to the nearest month); or
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if such release (or any successor release) is not published during the week preceding the Calculation Date or does not contain such yields, the rate per year equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, calculated using a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date.
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Comparable Treasury Issue
means the United States Treasury security selected by an Independent Investment Banker as having
a maturity comparable to the remaining term of the Notes to be redeemed from the redemption date to April 1, 2046 (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 of such Notes.
Comparable Treasury
Price
means, with respect to any redemption date, (1) the average of four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest Reference Treasury Dealer Quotations, or (2) if the Independent
Investment Banker obtains fewer than four such Reference Treasury Dealer Quotations, the average of all such quotations.
Independent Investment Banker
means one of the Reference Treasury Dealers as specified by the Issuer, or, if those firms
are unwilling or unable to select the Comparable Treasury Issue, an independent investment banking institution of national standing appointed by the Issuer.
Reference Treasury Dealer
means each of (1) Citigroup Global Markets Inc., Goldman, Sachs & Co., J.P. Morgan Securities
LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated or their respective successors, provided, however, that if any of the foregoing ceases to be a primary U.S. government securities dealer in the United States (a Primary Treasury
Dealer), the Issuer will substitute therefor another Primary Treasury Dealer and (2) any two other Primary Treasury Dealers selected by the Issuer after consultation with an Independent Investment Banker.
Reference Treasury Dealer Quotations
means, with respect to each Reference Treasury Dealer and any redemption date, the
average, as determined by the Independent Investment Banker, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Independent Investment Banker at
5:00 p.m., New York City time, on the Calculation Date.
Notice of such redemption must be mailed by first-class mail to each
Holders registered address, or delivered electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the redemption date. If the Issuer partially
redeems the Notes, the Registrar and Paying Agent, subject to the procedures of The Depository Trust Company, will select the Notes to be redeemed on a pro rata basis, by lot or by such other method in accordance with the procedures of The
Depository Trust Company, although no Note less than $2,000 in original principal amount will be redeemed in part. If the Issuer redeems any Note in part only, the notice of redemption relating to such Note shall state the portion of the principal
amount thereof to be redeemed. A new Note in principal amount equal to the unredeemed portion thereof will be issued in the name of the Holder thereof upon cancellation of the original Note. On and after the redemption date, interest will cease to
accrue on Notes or portions thereof called for redemption so long as the Issuer has deposited with the Registrar and Paying Agent funds sufficient to pay the principal of the Notes to be redeemed, plus accrued and unpaid interest thereon. Any notice
of redemption may be conditioned on the satisfaction of one or more conditions precedent.
Except as described above and as described in
Tax Redemption below, the Notes will not be redeemable by us prior to maturity. In addition, the Notes will not be entitled to the benefit of any sinking fund.
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Note Guarantees
The Guarantors, as primary obligors and not merely as sureties, will jointly and severally, irrevocably and unconditionally guarantee on a
senior unsecured basis the performance and full and punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all obligations of the Issuer under the Indenture (including obligations to the Trustee and the Registrar and
Paying Agent) and the Notes, whether for payment of principal of or interest on the Notes, expenses, indemnification or otherwise (all such obligations guaranteed by such Guarantors being herein called the Guaranteed Obligations). Each
of the Company, Intermediate Holdco and Delphi Corporation is 100% owned, directly or indirectly, by the Issuer.
Each of the Guarantors
will agree to pay, in addition to the amount stated above, any and all costs and expenses (including reasonable counsel fees and expenses) incurred by the Trustee in enforcing any rights under the Note Guarantees. Each Note Guarantee will be limited
in amount to an amount not to exceed the maximum amount that can be guaranteed by the applicable Guarantor without rendering the Note Guarantee, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or
fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Note Guarantee is a continuing guarantee and shall
(a) remain in full force and effect until payment in full of all the Guaranteed Obligations (subject to release as described below), (b) be binding upon each Guarantor and its successors and (c) inure to the benefit of, and be enforceable by, the
Trustee, the Holders and their successors, transferees and assigns.
If any Domestic Subsidiary of the Issuer guarantees any of the
Existing Notes, each such Subsidiary shall, within 30 days, provide a Note Guarantee for so long as such Existing Notes remain outstanding and are guaranteed by such Subsidiaries.
Existing Notes
means Delphi Corporations 5.00% Senior Notes due 2023.
The Issuer, at its option, may cause any Subsidiary of the Issuer to become a Guarantor.
The Note Guarantee of any Guarantor will be released without any further action required on the part of the Trustee or any holder:
(a) upon (i) the sale or other disposition (including by way of consolidation, merger, dissolution or otherwise) of the Capital Stock of such
Guarantor such that it is no longer a Subsidiary of the Issuer or (ii) the sale or other disposition of all or substantially all of the assets of such Guarantor;
(b) when such Subsidiary Guarantor is no longer an obligor (whether as an issuer or guarantor) on any of Delphi Corporations senior
notes outstanding on the Issue Date; or
(c) upon legal or covenant defeasance or satisfaction and discharge of the Notes.
Ranking
The indebtedness evidenced by
the Notes and the Note Guarantees is unsecured and ranks pari passu in right of payment to the senior indebtedness of the Issuer and the Guarantors, respectively.
The Notes are unsecured obligations of the Issuer. Secured debt and other secured obligations of the Issuer will be effectively senior to the
Notes to the extent of the value of the assets securing such debt or other obligations.
As of June 30, 2016, after giving effect to the
offering of the Notes, the Euro Notes Offering and the redemption of the 2023 Notes, we would have had total indebtedness of $4,118 million, including $58 million of secured debt.
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The Issuer currently conducts substantially all of its operations through its subsidiaries. To
the extent such subsidiaries are not the Guarantors, creditors of such subsidiaries, including trade creditors, and preferred stockholders, if any, of such subsidiaries generally will have priority with respect to the assets and earnings of such
subsidiaries over the claims of creditors of Issuer, including Holders. The Notes, therefore, will be effectively subordinated to the claims of creditors, including trade creditors, and preferred stockholders, if any, of the subsidiaries of the
Issuer that are not Guarantors.
Our non-Guarantor Subsidiaries contribute substantially all of our revenues and operating income, and
comprise substantially all of our assets and had total liabilities of $6,669 million, or 72.6%, of our total liabilities as of June 30, 2016 (without giving effect to intercompany eliminations). For more information, see Note 19 to our unaudited
financial statements for the six months ended June 30, 2016, included in our Quarterly Report on Form 10-Q incorporated by reference herein.
The Indenture does not limit the incurrence of indebtedness by the Issuer or any of its subsidiaries. The Issuer and its subsidiaries may be
able to incur substantial amounts of additional Indebtedness in certain circumstances.
Such Indebtedness may be senior indebtedness and,
subject to certain limitations, may be secured. See Certain CovenantsLimitation on Liens below.
The Notes will
rank equally in all respects with all other senior indebtedness of the Issuer. Unsecured Indebtedness is not deemed to be subordinate or junior to secured indebtedness merely because it is unsecured.
Change of Control Triggering Event
Upon
the occurrence of a Change of Control Triggering Event, each Holder will have the right to require the Issuer to purchase all or any part of such Holders Notes at a purchase price in cash equal to 101% of the principal amount thereof plus
accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Change
of Control Triggering Event
means, (1) the ratings of the Notes are downgraded by each of the Ratings
Agencies during the 60-day period (the Trigger Period) commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement of the occurrence of a Change of Control or our intention to effect a
Change of Control (which Trigger Period will be extended so long as the ratings of the Notes are under publicly announced consideration for possible downgrade by any of the Ratings Agencies) and (2) the Notes are rated below an Investment Grade
Rating by each of the Ratings Agencies on any date during the Trigger Period; provided that (x) a Change of Control Triggering Event will not be deemed to have occurred in respect of a particular Change of Control if each Ratings Agency does not
publicly announce or confirm or inform the Trustee in writing at our request that the reduction was the result of the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Change of Control Triggering
Event) and (y) the Trigger Period will terminate with respect to each Ratings Agency when such Ratings Agency takes action (including affirming its existing ratings) with respect to such Change of Control. Notwithstanding the foregoing, no Change of
Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Change
of Control
means the occurrence of any of the following:
(1) any transaction occurs (including a merger or consolidation of the Issuer) following which any person (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) is the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer; or
(2) sale, lease or transfer (for the avoidance of doubt, other than a transfer to the Issuer or one of its Subsidiaries), in one or a series
of related transactions, of all or substantially all the assets of the Issuer and its
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Subsidiaries, taken as a whole, to a Person in which any person (as defined above) holds or acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of 50% or more
of the total voting power of the Voting Stock of such transferee Person.
Notwithstanding the foregoing, a transaction will not be deemed
to involve a Change of Control if (1) the Issuer becomes a direct or indirect Subsidiary (the Sub Entity) of a holding company and (2) no person (as defined above) (other than a holding company) owns, directly or indirectly, a majority
of the voting power of the Equity Interests of such holding company.
Within 30 days following any Change of Control Triggering Event, the
Issuer shall (unless prior to such date such Change of Control Triggering Event ceases to exist) deliver by mail or electronic means a notice to each Holder with a copy to the Trustee (the Change of Control Offer), stating:
(1) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Issuer to purchase all or a
portion of such Holders Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive
interest on the relevant interest payment date);
(2) the circumstances and relevant facts and financial information regarding such Change
of Control Triggering Event;
(3) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such
notice is delivered); and
(4) the instructions determined by the Issuer, consistent with this covenant, that a Holder must follow in
order to have its Notes purchased.
The Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering
Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture applicable to a Change of Control Offer made by the Issuer and purchases all Notes
validly tendered and not withdrawn under such Change of Control Offer. In addition, the Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if the Notes have been or are called for redemption by
the Issuer prior to it being required to deliver notice of the Change of Control Offer, and thereafter redeems all Notes called for redemption in accordance with the terms set forth in such redemption notice. Notwithstanding anything to the contrary
contained herein, a revocable Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditioned upon the consummation of the relevant Change of Control, if a definitive agreement is in place for such Change of
Control at the time the Change of Control Offer is made.
The Issuer will comply, to the extent applicable, with the requirements of
Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of Notes pursuant to this covenant. To the extent that the provisions of any securities laws or regulations conflict with provisions of
this covenant, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this covenant by virtue thereof.
The Change of Control Triggering Event purchase feature is a result of negotiations between the Issuer and the underwriters. Management of the
Issuer has no present intention to engage in a transaction involving a Change of Control, although it is possible that the Issuer would decide to do so in the future. Subject to the limitations discussed below, the Issuer could, in the future, enter
into certain transactions, including acquisitions, refinancings or recapitalizations, that would not constitute a Change of Control under the Indenture, but that could increase the amount of Indebtedness outstanding at such time or otherwise affect
the Issuers capital structure or credit ratings.
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The occurrence of certain of the events which would constitute a Change of Control would
constitute a default under the Credit Agreement. Future senior indebtedness of the Issuer and its subsidiaries may contain prohibitions of certain events which would constitute a Change of Control or require such senior indebtedness to be
repurchased or repaid upon a Change of Control. Moreover, the exercise by the Holders of their right to require the Issuer to purchase the Notes could cause a default under the Credit Agreement or such other senior indebtedness, even if the Change
of Control itself does not, due to the financial effect of such repurchase on the Issuer or restrictions contained in the Credit Agreement or the applicable agreements governing such other senior indebtedness. Finally, the Issuers ability to
pay cash to the Holders upon a purchase may be limited by the Issuers then existing financial resources. There can be no assurance that sufficient funds will be available when necessary to make any required purchases.
The provisions under the Indenture relative to the Issuers obligation to make an offer to purchase the Notes as a result of a Change of
Control Triggering Event may be waived or modified with the written consent of the Holders of a majority in principal amount of the Notes.
Tax
Redemption
The Issuer may redeem the Notes as a whole but not in part, at its option at any time prior to maturity, upon the giving of
a notice of redemption to the holders, if it determines that, as a result of:
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any change in or amendment to the laws, or any regulations or rulings promulgated under the laws, of a Relevant Jurisdiction (as defined below under Payment of Additional Amounts) affecting taxation,
or
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any change in or amendment to an official position regarding the application or interpretation of the laws, regulations or rulings referred to above,
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which change or amendment is announced and becomes effective after the Issue Date (or, if the Relevant Jurisdiction becomes a Relevant Jurisdiction on a date
after the Issue Date, after such later date) (each of the foregoing, a Change in Tax Law), the Issuer or any Guarantor is or will become obligated to pay Additional Amounts with respect to the Notes or the Note Guarantees on the next
succeeding interest payment date, as described below under Payment of Additional Amounts (but in the case of a Guarantor, only if the payments giving rise to such obligation cannot be made by the Issuer or another Guarantor without
the obligation to pay Additional Amounts) and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Issuer or the Guarantor. The redemption price will be equal to 100% of the principal amount of
the Notes plus accrued and unpaid interest to but excluding the date fixed for redemption (a Tax Redemption Date), and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the
redemption or otherwise (subject to the right of Holders of the Notes on any record date occurring prior to the Tax Redemption Date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof).
The date and the applicable redemption price will be specified in the notice of tax redemption. Notice of such redemption will be irrevocable, and must be mailed by first-class mail to each Holders registered address, or delivered
electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the earliest date on which we would be obligated to pay such Additional Amounts if a payment in
respect of the Notes were actually due on such date. No such notice of redemption will be given unless, at the time such notification of redemption is given, such obligation to pay such Additional Amounts remains in effect.
Prior to giving the notice of tax redemption, we will deliver to the Trustee:
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a certificate signed by a duly authorized officer stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to
so redeem have occurred; and
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an opinion of independent tax counsel of recognized standing qualified under the laws of the Relevant Jurisdiction, selected by us, to the effect that the Issuer is or would be obligated to pay Additional Amounts as a
result of a Change in Tax Law.
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The foregoing provisions shall apply mutatis mutandis to any successor to the Issuer.
Payment of Additional Amounts
Payments
made by the Issuer, a Guarantor or a paying agent, as applicable, on the Notes or in respect of a Note Guarantee will be made free and clear of, and without withholding or deduction for or on account of, any present or future income, stamp or other
tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever (Taxes), unless the Issuer, a Guarantor or a paying agent is required to withhold or deduct Taxes by law.
If any withholding or deduction for or on account of Taxes imposed or levied by or on behalf of the United States, the United Kingdom, Jersey,
any other jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business or otherwise resident for tax purposes, or any other jurisdiction from or through which such payment is made, or in each case any political
subdivision or taxing authority or agency thereof or therein (each, a Relevant Jurisdiction) is at any time required by law to be made from any payment made with respect to the Notes or the Note Guarantee, the Issuer or the applicable
Guarantor, as applicable, will pay such additional amounts (Additional Amounts) on the Notes or in respect of the applicable Note Guarantee as may be necessary so that the net amount received by each holder of the Notes (including
Additional Amounts) after such withholding or deduction will not be less than the amount the holder would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:
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that would not have been imposed but for the Holder or the beneficial owner of such Note (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if
such Holder or beneficial owner is an estate, trust, partnership or corporation) being considered as having a present or former connection with a Relevant Jurisdiction (other than a connection arising solely as a result of the acquisition, ownership
or disposition of the Notes, the receipt of any payment under or with respect to the Notes or any Note Guarantee, or the exercise or enforcement of any rights under or with respect to the Notes, the Indenture or any Note Guarantee), including,
without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled therein or a national
thereof or being or having been engaged in a trade or business therein or having or having had a permanent establishment therein;
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(2)
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that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity
or connection with the Relevant Jurisdiction of the Holder or beneficial owner, if compliance is required by statute, by regulation of the Relevant Jurisdiction by an applicable income tax treaty to which the Relevant Jurisdiction is a party as a
precondition to exemption from such Tax;
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(3)
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payable other than by withholding from payments of principal of or interest on the Notes or from payments in respect of a Note Guarantee;
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(4)
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that would not have been imposed but for a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever
occurs later;
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(5)
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that are estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property or similar Taxes;
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(6)
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that are imposed on a payment to an individual and that is required to be made pursuant to, or to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the
taxation of savings;
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(7)
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required to be withheld by any paying agent from any payment of principal of or interest on any Note, if such payment can be made without such withholding by at least one other paying agent;
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(8)
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that would not have been imposed but for the presentation by the holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which such payment became due and payable or
the date on which payment thereof was duly provided for, whichever occurred later (except to the extent that the holder would have been entitled to Additional Amounts had the Note been presented on the last day of such 30-day period);
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(9)
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that are U.S. federal income Taxes imposed by reason of the Holder or beneficial owner of the Notes (i) being considered as (a) being or having been a controlled foreign corporation for U.S. federal income tax purposes
or a corporation that has accumulated earnings to avoid U.S. federal income tax; (b) being or having been a 10-percent shareholder of the Issuer as defined in section 871(h)(3) of the Code (or any amended or successor provision); or (c)
being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business or (ii) failing to provide an applicable IRS Form W-8 certifying as to such
persons non-U.S. status;
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(10)
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that are imposed under Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor provision that is substantively comparable), any current or future regulations or official interpretations
thereof, any agreement entered into pursuant to Section 1471(b) of the Code as of the Issue Date (or any amended or successor provision that is substantively comparable) or any fiscal or regulatory legislation, rules or practices adopted pursuant to
any intergovernmental agreement entered into in connection with the implementation of such sections of the Code; or
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(11)
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in the case of any combination of items (1), (2), (3), (4), (5), (6), (7), (8), (9) and (10);
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nor shall
Additional Amounts be paid with respect to any payment of the principal of or interest, if any, on any Note or any payment in respect of a Note Guarantee to any such holder who is a fiduciary or a partnership or a beneficial owner that is not the
sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the holder of the
Note.
The Issuer, a Guarantor or the paying agent, as applicable, will (i) make any required withholding or deduction, and (ii) remit the
full amount deducted or withheld by it to the Relevant Jurisdiction in accordance with applicable law.
All references in this prospectus
supplement and the accompanying prospectus, other than under Defeasance and Satisfaction and Discharge in this prospectus supplement, to the payment of the principal or interest, if any, on or the net proceeds
received on the sale or exchange of, any Notes or any payment made under the Note Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
In addition, the Issuer shall pay any present or future stamp, issue, registration, court, documentary, excise, property, or similar Taxes (i)
imposed by any Relevant Jurisdiction in respect of the execution, issuance, delivery, or registration of the Notes, any Note Guarantee, the Indenture, or any other document or instrument referred to therein, or the receipt of any payments with
respect to the Notes, or (ii) imposed by any jurisdiction in respect of the enforcement of the Notes, any Note Guarantee, the Indenture, or any other document or instrument referred to therein.
The Issuers and a Guarantors obligations to pay Additional Amounts if and when due will survive the termination of the Indenture
and the payment of all other amounts in respect of the Notes and shall apply mutatis mutandis to any successor of the Issuer or any Guarantor, and to any jurisdiction in which such successor is incorporated, organized, engaged in business or
otherwise resident for tax purposes, and any political subdivision or governmental authority thereof or therein.
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Certain Covenants
The Indenture contains covenants including, among others, those summarized below.
Limitation on Liens
The Company will not, and will not permit any Restricted Subsidiary to, directly or indirectly, incur or permit to exist any Lien (the
Initial Lien) of any nature whatsoever on any Principal Property (as defined below) or Capital Stock of a Restricted Subsidiary, whether owned at the Issue Date or thereafter acquired, which Initial Lien secures any Indebtedness, without
effectively providing that the Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured, other than the following (Permitted Liens):
(1) Liens securing Indebtedness under Credit Facilities in an aggregate principal amount not to exceed $2,075 million;
(2) pledges or deposits by such Person under workers compensation laws, unemployment insurance laws or similar legislation, or good
faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases, subleases, licenses or sublicenses to which such Person is a party, or deposits to secure public or statutory obligations of such
Person or deposits of cash or United States government bonds to secure surety, stay, customs, replevin or appeal bonds to which such Person is a party, or deposits as security or for the payment of rent, in each case incurred in the ordinary course
of business;
(3) Liens imposed by law, such as carriers, warehousemens and mechanics, materialmans,
repairmans, landlords, workmans, suppliers and other like Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such
Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review;
(4) Liens for taxes,
assessments or other governmental charges not yet due or payable or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(5) Liens in favor of issuers of surety or performance bonds or letters of credit, bank guarantees, bankers acceptances or similar
credit transactions issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(6)
survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real
property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation
of the business of such Person;
(7) Liens securing Indebtedness incurred to finance the construction, purchase or lease of, or repairs,
improvements or additions to, property of such Person; provided, however, that the Lien may not extend to any other property (other than accessions thereto, proceeds and products thereof and property related to the property being financed or through
cross-collateralization of individual financings of equipment provided by the same lender) owned by such Person or any of its Subsidiaries at the time the Lien is incurred, and the Indebtedness (other than any interest thereon) secured by the Lien
may not be incurred more than 270 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;
(8) Liens existing on the Issue Date and extensions, renewals, refinancings and replacements of any such Liens (including any future Liens
securing Indebtedness that the Company designates as a replacement of such Liens for purposes of this clause, even if such new Indebtedness is not issued concurrently with the repayment of
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the indebtedness so secured, the proceeds thereof are not used to repay such Indebtedness secured by such Liens or such Indebtedness is incurred for different purposes and by a different
borrower) so long as the principal amount of Indebtedness (including for this purpose, revolving commitments under the Credit Agreement as in effect on the Issue Date immediately before the issuance of the Notes, which shall be deemed to be
outstanding for these purposes even if undrawn) or other obligations secured thereby is not increased (other than to cover premiums, fees, accrued interest and any expenses of such extension, renewal, refinancing or replacement) and so long as such
Liens are not extended to any other property of the Company or any of its Subsidiaries (other than pursuant to blanket lien or after acquired property clauses existing in the applicable agreements (including any obligation to have new guarantors
provide liens on the same assets owned by it));
(9) Liens on property or shares of stock of another Person at the time such other Person
becomes a Subsidiary of such Person; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further, however, that such Liens do not
extend to any other property owned by such Person or any of its Subsidiaries, except proceeds and products thereof and improvements thereon or pursuant to after acquired property clauses existing in the applicable agreements at the time such Person
becomes a Subsidiary which do not extend to property transferred to such Person by the Company or a Restricted Subsidiary;
(10) Liens on
property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or any Subsidiary of such Person; provided, however, that such Liens are not
created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that the Liens do not extend to any other property owned by such Person or any of its Subsidiaries other than proceeds or products
thereof and accessions thereto;
(11) Liens securing Indebtedness or other obligations of the Company or a Subsidiary owing to the Company
or a Subsidiary of the Company;
(12) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any
Indebtedness secured by any Lien referred to in the foregoing clauses (7), (9) and (10); provided, however, that:
(A) such
new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements, accessions, proceeds, dividends or distributions in respect thereof) and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of:
(i) the outstanding principal amount or, if greater, committed amount of the indebtedness secured by Liens described under
clauses (7), (9) or (10) at the time the original Lien became a Permitted Lien under the Indenture; and
(ii) an amount
necessary to pay any fees and expenses, including premiums, related to such Refinancings;
(13) judgment Liens not giving rise to an Event
of Default;
(14) Liens securing Indebtedness consisting of (A) the financing of insurance premiums with the providers of such insurance
or their affiliates and (B) take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(15) other
Liens to secure Indebtedness as long as the amount of outstanding Indebtedness secured by Liens incurred pursuant to this clause (15), when aggregated with the amount of Attributable Debt outstanding and incurred in reliance on clause (5) under
Certain CovenantsLimitation on Sale and Leaseback Transactions, does not exceed 15.0% of Consolidated Total Assets at the time any such Lien is granted; provided, however, notwithstanding whether this clause (15) would
otherwise be available to secure Indebtedness, Liens securing
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Indebtedness originally secured pursuant to this clause (15) may secure Refinancing Indebtedness in respect of such Indebtedness and such Refinancing Indebtedness shall be deemed to have been
secured pursuant to this clause (15).
Principal Property
means any manufacturing or production plant located in the
United States of America (including fixtures but excluding leases and other contract rights which might otherwise be deemed real property) owned by the Company or any Restricted Subsidiary, whether owned on the date hereof or thereafter, provided
each such plant has a net book value at the date as of which the determination is being made of in excess of 1% of the Consolidated Total Assets of the Company and its Subsidiaries, other than any such plant which, in the opinion of the Board of
Directors (evidenced by a certified board resolution thereof delivered to the Trustee), is not of material importance to the business conducted by the Company and its Subsidiaries taken as a whole. As of the Issue Date, neither the Company nor any
Restricted Subsidiary owns any Principal Property. If the Company acquires property in the future that is Principal Property, it will be subject to this covenant.
Any Lien created for the benefit of the Holders of the Notes pursuant to the first paragraph of this covenant shall provide by its terms that
such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
For
purposes of determining compliance with this covenant, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in the definition of Permitted Liens but may be
permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens described in the definition of
Permitted Liens, the Company shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this
covenant and will only be required to include the amount and type of such Lien or such item of Indebtedness secured by such Lien in one of the clauses of the definition of Permitted Liens and such Lien securing such item of Indebtedness
will be treated as being incurred or existing pursuant to only one of such clauses.
Limitation on Sale and Leaseback Transactions
The Company will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect
to any Principal Property unless:
(1) the Sale and Leaseback Transaction is solely with the Company or a Subsidiary of the Company;
(2) the lease is for a period not in excess of 24 months, including renewals;
(3) the Company or such Restricted Subsidiary would (at the time of entering into such arrangement) be entitled as described in clauses (1)
through (14) of the definition of Permitted Liens, without equally and ratably securing the Notes then outstanding under the Indenture, to create, incur, issue, assume or guarantee Indebtedness secured by a Lien on such property in the
amount of the Attributable Debt arising from such Sale and Leaseback Transaction;
(4) the Company or such Restricted Subsidiary within
360 days after the sale of such Principal Property in connection with such Sale and Leaseback Transaction is completed, applies an amount equal to the net proceeds of the sale of such Principal Property to (i) the permanent retirement of Notes,
other Indebtedness of the Issuer ranking on a parity with the Notes or Indebtedness of the Company or a Subsidiary of the Company or (ii) the purchase of property; or
(5) the Attributable Debt of the Company and its Restricted Subsidiaries in respect of such Sale and Leaseback Transaction and all other Sale
and Leaseback Transactions entered into after the Issue Date (other than any such Sale and Leaseback Transaction as would be permitted as described in clauses (1) through (4) of
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this sentence), plus the aggregate principal amount of Indebtedness secured by Liens on properties then outstanding (not including any such Indebtedness secured by Liens described in clauses (1)
through (14) of the definition of Permitted Liens) which do not equally and ratably secure such outstanding Notes (or secure such outstanding Notes on a basis that is prior to other Indebtedness secured thereby), would not exceed 15% of
Consolidated Total Assets.
Merger and Consolidation
The Issuer will not, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or substantially all its
assets in one or a series of related transactions to, any Person, unless:
(1) the resulting, surviving or transferee Person (the
Successor Company) will be a corporation, limited liability company or limited liability partnership organized and existing under the laws of (x) the United States of America or any State thereof or the District of Columbia or (y) the
United Kingdom, Jersey and any other jurisdiction in the Channel Islands, any member state of the European Union as in effect on the Issue Date, Switzerland, Bermuda, The Cayman Islands or Singapore, provided that, the Successor Company (if not the
Issuer) will expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all the obligations of the Issuer under the Indenture and the Notes (and, if the Successor Company is not a corporation, the Issuer shall cause a
corporate co-issuer to become a co-obligor on the Notes);
(2) immediately after giving effect to such transaction, no Default shall have
occurred and be continuing; and
(3) the Issuer shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture.
The
Successor Company will succeed to, and be substituted for, and may exercise every right and power of, the Issuer under the Indenture, and the predecessor Issuer other than in the case of a lease, will be released from the obligation to pay the
principal of and interest on the Notes.
In addition, the Company will not and will not permit any other Guarantor to, directly or
indirectly, consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets in one or a series of related transactions to, any Person unless:
(1) (A) the resulting, surviving or transferee Person (the Successor Guarantor) will be a corporation, limited liability
partnership, limited liability company, limited company, or other similar organization (and in the case of any such transaction involving the Company, such Successor Guarantor shall be organized under the laws of the jurisdiction of organization of
the United States of America (or any state thereof or the District of Columbia), the United Kingdom, Jersey and any other jurisdiction in the Channel Islands, any member state of the European Union as in effect on the Issue Date, Switzerland,
Bermuda, The Cayman Islands or Singapore, and such Person (if not such Guarantor) will expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all the obligations of such Guarantor under its Note Guarantee;
(B) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(C) the Issuer will have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that
such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture; or
(2) such Guarantor will be
released from its Note Guarantee in connection therewith as provided in the Indenture.
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Notwithstanding the first paragraph above or the immediately preceding paragraph:
(A) any Subsidiary of the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer, any
Guarantor or any Subsidiary of the Company; and
(B) the Issuer and any Guarantor may merge with an Affiliate organized solely for the
purpose of reorganizing the Issuer or such Guarantor in another jurisdiction.
Defaults
Each of the following is an Event of Default with respect to the Notes:
(1) a default in any payment of interest on the Notes when due and payable continued for 30 days;
(2) a default in the payment of principal of any Note when due and payable at its Stated Maturity, upon optional redemption or required
repurchase, upon declaration of acceleration or otherwise;
(3) the failure by the Issuer or any Guarantor to comply with its obligations
under the covenant described under Certain CovenantsMerger and Consolidation above;
(4) the failure by the Issuer
or any Restricted Subsidiary to comply for 60 days after notice with any of its obligations under the covenant described under Change of Control Triggering Event above (other than a failure to purchase Notes);
(5) the failure by the Issuer or any Subsidiary to comply for 90 days after notice as specified in the Indenture with its other agreements
contained in the Indenture;
(6) certain events of bankruptcy, insolvency or reorganization of the Issuer (the bankruptcy
provisions); and
(7) any Note Guarantee by the Company or any Significant Subsidiary (or group of Subsidiaries that together would
constitute a Significant Subsidiary) ceases to be in full force and effect in all material respects (except as contemplated by the terms thereof) or any Guarantor denies or disaffirms such Guarantors obligations under the Indenture or any Note
Guarantee and such Default continues for 10 days after receipt of the notice as specified in the Indenture.
The foregoing will constitute
Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body.
However, a default under clauses (4), (5) or (7) will not constitute an Event of Default with
respect to any Notes until the Trustee notifies the Issuer or the Holders of at least 25% in principal amount of the outstanding Notes and notes of all series affected thereby notify the Issuer and the Trustee of the default and the Issuer or the
Guarantor, as applicable, does not cure such default within the time specified in clauses (4), (5) or (7) hereof after receipt of such notice.
If an Event of Default (other than an Event of Default relating to certain events of bankruptcy, insolvency or reorganization of the Issuer)
occurs and is continuing, the Trustee (at the direction of the Holders) or the Holders of at least 25% in principal amount of the outstanding Notes and all other notes issued under the Indenture affected thereby (all such series voting as a single
class) by notice to the Issuer may declare the principal of and accrued but unpaid interest on all of the Notes and such other notes of the affected series to be due and payable. Upon such a declaration, such principal and interest will be due and
payable immediately. If an Event of Default
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relating to certain events of bankruptcy, insolvency or reorganization of the Issuer occurs, the principal of and interest on all of the Notes will become immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders. Under certain circumstances, the Holders of a majority in principal amount of the outstanding Notes and all other notes issued under the Indenture affected thereby (all such series
voting as a single class) may rescind any such acceleration and its consequences.
Subject to the provisions of the Indenture relating to
the duties of the Trustee, in case an Event of Default occurs and is continuing, the Trustee will be under no obligation to exercise any of the rights or powers under the Indenture at the request or direction of any of the Holders unless such
Holders have offered to the Trustee security or indemnity satisfactory to it against any loss, liability or expense. Except to enforce the right to receive payment of principal, premium (if any) or interest when due, no Holder of a Note may pursue
any remedy with respect to the Indenture or the Notes unless:
(1) such Holder has previously given the Trustee notice that an Event of
Default is continuing,
(2) Holders of at least 25% in principal amount of the outstanding Notes and all other notes of all series
affected thereby have requested the Trustee in writing to pursue the remedy,
(3) such Holder has offered the Trustee security or
indemnity satisfactory to it against any loss, liability or expense,
(4) the Trustee has not complied with such request within 60 days
after the receipt of the request and the offer of security or indemnity, and
(5) the Holders of a majority in principal amount of the
outstanding Notes have not given the Trustee a direction inconsistent with such request within such 60-day period.
Subject to certain
restrictions, the Holders of a majority in principal amount of the outstanding Notes and all other notes of all series affected thereby will be given the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or of exercising any trust or power conferred on the Trustee with respect to the Notes. However, the Trustee may refuse to follow any direction that conflicts with law or the Indenture or that the Trustee determines is
unduly prejudicial to the rights of any other Holder of a Note or that would involve the Trustee in personal liability. Prior to taking any action under the Indenture, the Trustee will be entitled to security or indemnification satisfactory to it in
its sole discretion against all losses, liabilities and expenses.
If a Default occurs and is continuing and is actually known to the
Trustee, the Trustee must deliver to each Holder of the Notes, notice of the Default within 30 days after it is actually known to a Trust Officer or written notice of it is received by the Trustee. Except in the case of a Default in the payment of
principal of, premium (if any) or interest on any Note (including payments pursuant to the redemption provisions of such Note), the Trustee may withhold notice if and so long as a committee of its Trust Officers in good faith determines that
withholding notice is in the interests of the Holders. In addition, the Issuer will be required to deliver to the Trustee, within 120 days after the end of each fiscal year, a certificate indicating whether the signers thereof know of any Default
that occurred during the previous year. The Issuer will also be required to deliver to the Trustee, within 30 days after the occurrence thereof, written notice of any event which would constitute certain Events of Default, their status and what
action the Issuer is taking or proposes to take in respect thereof.
Amendments and Waivers
Subject to certain exceptions, the Indenture or the Notes may be amended as it relates to the Notes with the written consent of the Holders of
a majority in principal amount of the Notes then outstanding and all other notes issued under the Indenture affected thereby (all such series voting as a single class) and any past default or
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compliance with any provisions with respect to the Notes may be waived with the consent of the Holders of a majority in principal amount of the Notes then outstanding and all other notes of all
series affected thereby voting as a single class. However, without the consent of each Holder of an outstanding Note affected, no amendment may, among other things:
(1) reduce the amount of the Notes whose Holders must consent to an amendment;
(2) reduce the rate of or extend the time for payment of interest on any Note;
(3) reduce the principal of or extend the Stated Maturity of any Note;
(4) reduce the premium payable upon the redemption of any Note or change the scheduled date at which any Note may be redeemed as described
under Optional Redemption above;
(5) make any Note payable in money other than that stated in the Note;
(6) impair the right of any Holder of Notes to receive payment of principal of, and interest on, such Holders Notes on or after the due
dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holders Notes; or
(7) make any
change in the amendment provisions which require each Holders consent or in the waiver provisions.
Without the consent of any
Holder of the Notes, the Issuer, the Guarantors and the Trustee, as applicable, may amend the Indenture to:
(1) cure any ambiguity,
omission, defect or inconsistency;
(2) provide for the assumption by a successor corporation of the obligations of the Issuer or any
Guarantor under the Indenture;
(3) provide for uncertificated Notes in addition to or in place of certificated Notes (provided, however,
that the uncertificated Notes are issued in registered form for purposes of Section 163(f) of the Code);
(4) add additional Note
Guarantees or to confirm and evidence the release, termination or discharge of any Note Guarantee when such release, termination or discharge is permitted under the Indenture;
(5) add to the covenants of the Company or the Issuer for the benefit of the Holders of Notes or to surrender any right or power conferred
upon the Company or the Issuer;
(6) make any amendment to the provisions of the Indenture relating to the form, authentication, transfer
and legending of Notes; provided, however, that
(A) compliance with the Indenture as so amended would not result in Notes
being transferred in violation of the Securities Act or any other applicable securities law and
(B) such amendment does
not materially affect the rights of Holders to transfer Notes;
(7) comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA;
(8) to establish the form or forms or terms of notes of any series as permitted under the
provisions of the Indenture relating to the issuance of notes in series;
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(9) convey, transfer, assign, mortgage or pledge as security for the Notes any property or assets
in accordance with the covenant described under Certain CovenantsLimitation on Liens;
(10) conform any provision
of the Indenture or the Notes to this Description of Notes; or
(11) make any other change that does not adversely affect the
rights of any Holder in any material respect.
The consent of the Holders will not be necessary to approve the particular form of any
proposed amendment. It will be sufficient if such consent approves the substance of the proposed amendment.
After an amendment becomes
effective, the Issuer is required to deliver to Holders a notice briefly describing such amendment. However, the failure to give such notice to all Holders, or any defect therein, will not impair or affect the validity of the amendment.
Transfer and Exchange
A Holder will be
able to transfer or exchange Notes in accordance with the restrictions set forth in the Indenture. Upon any transfer or exchange, the Registrar and Paying Agent and the Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Issuer may require Holders to pay any transfer tax or other similar governmental charge payable in connection with any such transfer or exchange that are required by law or permitted by the Indenture. The
Issuer will not be required to transfer or exchange any Note selected for redemption or to transfer or exchange any Note for a period of 15 days prior to a selection of Notes to be redeemed. The Notes will be issued in registered form and the Holder
will be treated as the owner of such Note for all purposes.
Satisfaction and Discharge
When (1) the Issuer delivers to the Trustee or Registrar and Paying Agent all outstanding Notes for cancellation or (2) all outstanding Notes
have become due and payable or will become due and payable within one year, whether at maturity or on a redemption date as a result of the delivery by the Issuer of a notice of irrevocable redemption to the Trustee or Registrar and Paying Agent and,
in the case of clause (2), the Issuer deposits with the Trustee or Registrar and Paying Agent funds or Government Obligations sufficient to pay at maturity or upon redemption all outstanding Notes, including premium, if any, interest thereon to
maturity or such redemption date, and if in any case the Issuer pays all other sums payable under the Indenture by the Issuer with respect to the Notes, then the Indenture shall, subject to certain exceptions, cease to be of further effect with
respect to all outstanding Notes;
provided
that in a discharge in connection with any redemption that requires the payment of a premium based on the Treasury Rate plus a specified amount of basis points (the Applicable Premium),
the amount deposited shall be sufficient for purposes of the Indenture to the extent that an amount is deposited with the Trustee equal to the Applicable Premium calculated as of the date of the notice of redemption, with any deficit on the date of
redemption (the Applicable Premium Deficit) only required to be deposited with the Trustee on or prior to the date of the redemption. Any Applicable Premium Deficit shall be set forth in an Officers Certificate delivered to the
Trustee simultaneously with the deposit of such Applicable Premium Deficit that confirms that such Applicable Premium Deficit shall be applied toward such redemption.
Defeasance
The Issuer may, as described
below, at any time terminate all its and the Guarantors obligations under the Indenture (legal defeasance), except for certain obligations, including those respecting the defeasance trust and obligations to register the transfer or
exchange of the Notes, to replace mutilated, destroyed, lost or stolen Notes and to maintain a Registrar and Paying Agent in respect of the Notes.
In addition, the Issuer may, as described below, at any time terminate in respect of the Notes:
(1) its obligations under the covenants described under Change of Control Triggering Event and Certain
Covenants, and
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(2) the operation of the covenant default provisions and the bankruptcy provisions (other than
with respect to the Issuer) described under Defaults above (covenant defeasance and such provisions the defeased provisions).
In the event that the Issuer exercises its legal defeasance option or its covenant defeasance option with respect to the Notes, each Guarantor
will be released from all of its obligations with respect to its Note Guarantee.
The Issuer may exercise its legal defeasance option
notwithstanding its prior exercise of its covenant defeasance option. If the Issuer exercises its legal defeasance option with respect to the Notes, payment of the Notes may not be accelerated because of an Event of Default with respect thereto. If
the Issuer exercises its covenant defeasance option with respect to the Notes, payment of the Notes may not be accelerated because of an Event of Default specified in, or resulting from a breach of, the defeased provisions.
In order to exercise either defeasance option with respect to the Notes, the Issuer must deposit in trust (the defeasance trust)
with the Trustee money in an amount sufficient or Government Obligations, the principal of and interest on which will be sufficient, or a combination thereof sufficient, without consideration of any reinvestment of such principal and interest, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay the principal of, premium (if any) and interest in respect of the Notes to redemption or
maturity, as the case may be, and must comply with certain other conditions, including delivery to the Trustee of an Opinion of Counsel to the effect that holders will not recognize income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance and will be subject to Federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such deposit and defeasance had not occurred (and, in the case of legal defeasance
only, such Opinion of Counsel must be based on a ruling of the Internal Revenue Service or other change in applicable Federal income tax law).
Book-Entry, Delivery and Form
The Notes
initially will be represented by one or more permanent global certificates in definitive, fully registered form (the Global Notes). The Global Notes will be deposited upon issuance with The Depository Trust Company, New York, New York
(DTC), and registered in the name of a nominee of DTC in the form of a global certificate. DTC has advised us that pursuant to procedures established by it (i) upon the issuance of the Global Notes, DTC or its custodian will credit, on
its internal system, the principal amount at maturity of the individual beneficial interests represented by such Global Notes to the respective accounts of persons who have accounts with such depositary and (ii) ownership of beneficial interests in
the Global Notes will be shown on, and the transfer of such ownership will be effected only through, records maintained by DTC or its nominee (with respect to interests of participants) and the records of participants (with respect to interests of
persons other than participants). Ownership of beneficial interests in the Global Notes will be limited to persons who have accounts with DTC (participants) or persons who hold interests through participants. Holders may hold their
interests in the Global Notes directly through DTC if they are participants in such system, or indirectly through organizations that are participants in such system.
So long as DTC, or its nominee, is the registered owner or Holder of the Notes, DTC or such nominee, as the case may be, will be considered
the sole owner or Holder of the Notes represented by such Global Notes for all purposes under the indenture governing the Notes. No beneficial owner of an interest in the Global Notes will be able to transfer that interest except in accordance with
DTCs procedures, in addition to those provided for under the indenture with respect to the Notes.
Payments of the principal of,
premium, if any, and interest (including additional interest) on, the Global Notes will be made to DTC or its nominee, as the case may be, as the registered owner of the Global Notes. None of Delphi, the Trustee or any paying agent under the
indenture governing the Notes will have any responsibility
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or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests in the Global Notes or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interest.
DTC has advised us that its present practice is, upon receipt of any payment of
principal, premium, if any, and interest (including additional interest) on the Global Notes, to credit immediately participants accounts with payments in amounts proportionate to their respective beneficial interests in the principal amount
of the Global Notes as shown on the records of DTC. Payments by participants to owners of beneficial interests in the Global Notes held through such participants will be governed by standing instructions and customary practice, as is now the case
with securities held for the accounts of customers registered in the names of nominees for such customers. Such payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary way through DTCs same-day funds system in accordance with DTC
rules and will be settled in same-day funds. If a Holder requires physical delivery of a certificated security for any reason, including to sell Notes to persons in states which require physical delivery of the Notes, or to pledge such securities,
such Holder must transfer its interest in a Global Note, in accordance with the normal procedures of DTC and with the procedures set forth in the indenture governing the Notes.
DTC has advised us that it will take any action permitted to be taken by a Holder of Notes, including the presentation of Notes for exchange
as described below, only at the direction of one or more participants to whose account the DTC interests in the Global Notes are credited and only in respect of such portion of the aggregate principal amount of Notes as to which such participant or
participants has or have given such direction. However, if there is an event of default under the indenture governing the Notes, DTC will exchange the Global Notes for certificated securities, which it will distribute to its participants.
DTC has advised us as follows: DTC is a limited purpose trust company organized under the laws of the State of New York, a member of the
Federal Reserve System, a clearing corporation within the meaning of the Uniform Commercial Code and a Clearing Agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants and facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of its participants, thereby eliminating the need for physical movement of
certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations and certain other organizations. Indirect access to the DTC system is available to others such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly (indirect participants).
Although DTC has agreed to the foregoing procedures in order to facilitate transfers of interests in the Global Note among participants of
DTC, it is under no obligation to perform such procedures, and such procedures may be discontinued at any time. Neither we nor the trustee will have any responsibility for the performance by DTC or its participants or indirect participants of their
respective obligations under the rules and procedures governing their operations.
Clearstream.
Clearstream is incorporated under
the laws of Luxembourg as a professional depositary. Clearstream holds securities for its participating organizations (Clearstream Participants) and facilitates the clearance and settlement of securities transactions between Clearstream
Participants through electronic bookentry changes in accounts of Clearstream Participants, thereby eliminating the need for physical movement of certificates. Clearstream provides Clearstream Participants with, among other things, services for
safekeeping, administration, clearance and establishment of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic markets in several countries. As a professional depositary, Clearstream is
subject to regulation by the Luxembourg Monetary Institute. Clearstream Participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks,
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trust companies, clearing corporations and certain other organizations, and may include the underwriters. Indirect access to Clearstream is also available to others, such as banks, brokers,
dealers and trust companies that clear through or maintain a custodial relationship with a Clearstream Participant either directly or indirectly.
Distributions with respect to Notes held beneficially through Clearstream will be credited to cash accounts of Clearstream Participants in
accordance with its rules and procedures to the extent received by DTC for Clearstream.
Euroclear.
Euroclear was created in 1968
to hold securities for participants of Euroclear (Euroclear Participants) and to clear and settle transactions between Euroclear Participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the
need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash. Euroclear includes various other services, including securities lending and borrowing and interfaces with domestic markets in several
markets in several countries. Euroclear is operated by Euroclear Bank S.A./N.V. (the Euroclear Operator), under contract with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the Cooperative). All
operations are conducted by the Euroclear Operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf
of Euroclear Participants. Euroclear Participants include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include the underwriters. Indirect access to Euroclear is also
available to other firms that clear through or maintain a custodial relationship with a Euroclear Participant, either directly or indirectly.
The Euroclear Operator is regulated and examined by the Belgian Banking Commission.
Links have been established among DTC, Clearstream and Euroclear to facilitate the initial issuance of the Notes sold outside of the United
States and cross-market transfers of the Notes associated with secondary market trading.
Although DTC, Clearstream and Euroclear have
agreed to the procedures provided below in order to facilitate transfers, they are under no obligation to perform these procedures, and these procedures may be modified or discontinued at any time.
Clearstream and Euroclear will record the ownership interests of their participants in much the same way as DTC, and DTC will record the total
ownership of each of the U.S. agents of Clearstream and Euroclear, as participants in DTC. When Notes are to be transferred from the account of a DTC participant to the account of a Clearstream participant or a Euroclear participant, the purchaser
must send instructions to Clearstream or Euroclear through a participant at least one day prior to settlement. Clearstream or Euroclear, as the case may be, will instruct its U.S. agent to receive Notes against payment. After settlement, Clearstream
or Euroclear will credit its participants account. Credit for the Notes will appear on the next day (European time).
Because
settlement is taking place during New York business hours, DTC participants will be able to employ their usual procedures for sending Notes to the relevant U.S. agent acting for the benefit of Clearstream or Euroclear participants. The sale proceeds
will be available to the DTC seller on the settlement date. As a result, to the DTC participant, a cross-market transaction will settle no differently than a trade between two DTC participants.
When a Clearstream or Euroclear participant wishes to transfer Notes to a DTC participant, the seller will be required to send instructions to
Clearstream or Euroclear through a participant at least one business day prior to settlement. In these cases, Clearstream or Euroclear will instruct its U.S. agent to transfer these Notes against payment for them. The payment will then be reflected
in the account of the Clearstream or Euroclear participant the following day, with the proceeds back valued to the value date, which would be the preceding day, when settlement occurs in New York. If settlement is not completed on the intended value
date, that is, the trade fails,
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proceeds credited to the Clearstream or Euroclear participants account will instead be valued as of the actual settlement date.
You should be aware that you will only be able to make and receive deliveries, payments and other communications involving the Notes through
Clearstream and Euroclear on the days when those clearing systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States. In addition, because
of time zone differences there may be problems with completing transactions involving Clearstream and Euroclear on the same business day as in the United States.
Certificated Securities
A Global Note is exchangeable for certificated securities if:
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DTC (1) notifies us that it is unwilling or unable to continue as depositary for the Global Notes or (2) has ceased to be a Clearing Agency registered under the Exchange Act and, in either case, we fail to appoint a
successor depositary;
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we, at our option, notify the Trustee in writing that we elect to cause the issuance of the Notes in certificated form (provided that under current industry practices, DTC would notify participants of our determination,
but would only withdraw beneficial interests from a Global Note at the request of participants); or
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there has occurred and is continuing a default or an event of default with respect to the Notes.
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Concerning the Trustee and the Registrar and Paying Agent
Wilmington Trust, National Association is the Trustee under the Indenture and Deutsche Bank Trust Company Americas has been appointed by the
Issuer as Registrar and Paying Agent with regard to the Notes. The Trustee and its affiliates have engaged and may in the future engage in financial or other transactions with the Issuer and the other Guarantors and their and our affiliates in the
ordinary course of their respective businesses, subject to the TIA.
The Registrar and Paying Agent have engaged, currently are engaged,
and may in the future engage in financial or other transactions with the Issuer and the other Guarantors and their and our affiliates in the ordinary course of their respective businesses.
Governing Law
The Indenture and the
Notes will be governed by, and construed in accordance with, the laws of the State of New York.
Certain Definitions
Additional Notes
has the meaning given to such term under Indenture May Be Used for Future Issuances.
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. For the purposes of this definition, control when used with respect to any Person means the power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise; and the terms controlling and controlled have meanings correlative to the foregoing.
Attributable Debt
means, with respect to any Sale and Leaseback Transaction that does not result in a Capitalized Lease
Obligation, the present value (computed in accordance with GAAP) of the total obligations of
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the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended). In the case of
any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of:
(1) the Attributable
Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated); and
(2) the Attributable Debt determined assuming no such termination.
Board of Directors
means the board of directors of the Issuer or any committee thereof duly authorized to act on
behalf of the board of directors of the Issuer.
Business Day
means each day which is not a Legal Holiday.
Capital Stock
of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or
other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
Capitalized Lease Obligations
means an obligation that is required to be classified and accounted for as a capitalized
lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP.
Cash Management Obligations
means obligations in respect of overdraft and related liabilities arising from treasury,
depositary and cash management services or any automated clearing house transfers of funds or participating in commercial (or purchasing) card programs.
Code
means the Internal Revenue Code of 1986, as amended.
Consolidated Total Assets
means, at any time, the total consolidated assets of the Company and its Subsidiaries, as shown
on the most recent balance sheet of the Company at such time calculated on a pro forma basis to give effect to any acquisition or disposition of any Person or line of business after the date thereof.
Credit Agreement
means, the Amended and Restated Credit Agreement, dated as of August 17, 2016 by and among the Company,
the Issuer, Delphi Automotive Holdings US Limited, Delphi Corporation, the several lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (including, without limitation, any guarantee agreements and security
documents), in each case as such agreements may be further amended (including any amendment and restatement thereof), supplemented, extended or otherwise modified from time to time.
Credit Facilities
means (1) the Credit Agreement and (2) one or more debt facilities, indentures or other agreements
refinancing, replacing, amending, restating or supplementing (whether or not contemporaneously and whether or not related to the agreements specified above) or otherwise restructuring or increasing the amount of available borrowings or other credit
extensions under or making Subsidiaries of the Company a borrower, additional borrower or guarantor under, all or any portion of the Indebtedness under such agreement or any successor, replacement or supplemental agreement and whether including any
additional obligors or with the same or any other agent, lender or group of lenders or with other financial institutions or lenders.
Default
means any event which is, or after notice or passage of time or both would be, an Event of Default.
Domestic Subsidiary
means any Subsidiary that was formed under the laws of the United States, any state of the United
States or the District of Columbia.
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Exchange Act
means the Securities Exchange Act of 1934, as amended.
GAAP
means generally accepted accounting principles in the United States of America as in effect as of the Issue Date set
forth in:
(1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants,
(2) statements and pronouncements of the Financial Accounting Standards Board,
(3) such other statements by such other entities as approved by a significant segment of the accounting profession, and
(4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in
periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.
Guarantor
means the Company, Intermediate Holdco, Delphi Corporation and any Person that provides a Note Guarantee under
the Indenture.
Holder
means the Person in whose name a Note is registered on the registrar and paying agents
books.
Indebtedness
means the principal of and premium (if any) in respect of indebtedness of such Person for borrowed
money.
Notwithstanding the foregoing, (i) in connection with the purchase by the Company or any Subsidiary of any business, the term
Indebtedness will exclude bona fide post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such
business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter and
(ii) Cash Management Obligations and other obligations in respect of card obligations, netting services, overdraft protections, cash management services and similar arrangements shall not constitute Indebtedness.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as
described above; provided, however, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such time.
interest
means, with respect to the Notes, interest on the Notes.
Investment Grade Rating
means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB(or
the equivalent) by Standard & Poors, or if Moodys or Standard & Poors shall cease to provide a rating of the Notes, an equivalent rating by any other Ratings Agency.
Issue Date
means the date Notes are first issued under the Indenture.
Legal Holiday
means a Saturday, Sunday or other day on which the Trustee, registrar and paying agent or banking
institutions are not required by law or regulation to be open in the State of New York.
Lien
means any mortgage,
pledge, security interest, encumbrance, lien or charge in the nature of an encumbrance of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided that any obligation in respect of an
operating lease shall not be deemed a lien.
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Moodys
means Moodys Investors Service, Inc. and any successor to
its rating business.
Note Guarantee
means each guarantee of the obligations with respect to the Notes issued by a
Guarantor pursuant to the terms of the Indenture.
Officer
means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President, the Treasurer or the Secretary of the Issuer. Officer of any Guarantor has a correlative meaning.
Officers Certificate
means a certificate signed by an Officer.
Opinion of Counsel
means a written opinion from legal counsel who is acceptable to the Trustee. The counsel may be an
employee of or counsel to the Issuer or a Guarantor.
Person
means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
principal
of a Note means the principal of the Note plus the premium, if any, payable on the Note which is due or overdue
or is to become due at the relevant time.
Ratings Agency
means Standard & Poors and Moodys or, if
Standard & Poors or Moodys or either or both of them shall not make a rating on the Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Company (as certified by
a resolution of the Board of Directors) which shall be substituted for Standard & Poors or Moodys or either or both of them, as the case may be.
Refinance
means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or
retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness, including, in any such case from time to time, after the discharge of the Indebtedness being Refinanced. Refinanced and Refinancing
shall have correlative meanings.
Refinancing Indebtedness
means Indebtedness that is incurred to Refinance (including
pursuant to any defeasance or discharge mechanism) any Indebtedness of the Company or any Subsidiary existing on the Issue Date or incurred in compliance with the Indenture (including Indebtedness that Refinances Refinancing Indebtedness); provided,
however, such Refinancing Indebtedness is incurred in an aggregate principal amount (or if incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount of the Indebtedness being
refinanced (or if issued with original issue discount, the aggregate accreted value) then outstanding (or that would be outstanding if the entire committed amount of any credit facility being Refinanced were fully drawn) plus fees and expenses,
including any premium and defeasance costs and accrued interest.
Restricted Subsidiary
means any Domestic Subsidiary
of the Company that directly owns any Principal Property.
Sale and Leaseback Transaction
means an arrangement relating
to property, plant or equipment now owned or hereafter acquired by the Company or a Restricted Subsidiary whereby the Company or a Restricted Subsidiary transfers such property to a Person and the Company or such Restricted Subsidiary leases it from
such Person, other than (i) leases between the Company and a Subsidiary or between Subsidiaries or (ii) any such transaction entered into with respect to any property, plant or equipment or any improvements thereto at the time of, or within 180 days
after, the acquisition or completion of construction of such property, plant or equipment or such improvements (or, if later, the commencement of commercial operation of any such property, plant or equipment), as the case may be, to finance the cost
of such property, plant or equipment or such improvements, as the case may be.
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SEC
means the United States Securities and Exchange Commission.
Significant Subsidiary
means any Restricted Subsidiary that would be a Significant Subsidiary of the Company
within the meaning of Rule 1-02(w)(1) or (2) under Regulation S-X promulgated by the SEC as in effect on the Issue Date.
Standard & Poors
means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and any
successor to its rating business.
Stated Maturity
means, with respect to any security, the date specified in such
security as the fixed date on which the final payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision (but excluding any provision providing for the repurchase of such security at the option
of the holder thereof upon the happening of any contingency beyond the control of the issuer unless such contingency has occurred).
Subsidiary
of any Person means any corporation, association, partnership or other business entity of which more than 50% of
the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by:
(1) such Person,
(2) such Person and one or more Subsidiaries of such Person or
(3) one or more Subsidiaries of such Person.
Unless otherwise specified herein or context otherwise requires, all references to any Subsidiary shall be to a Subsidiary of the Company. For
the avoidance of doubt, BDWY, a Chinese corporation, is a Subsidiary of the Company pursuant to its governance structure as in effect on the Issue Date.
TIA
means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the Issue Date.
Trustee
means the party named as such in the Indenture until a successor or assignee replaces it and, thereafter, means the
successor or assignee.
Trust Officer
means the Chairman of the Board, the President or any other officer or assistant
officer of the Trustee assigned by the Trustee to administer its corporate trust matters and who shall have direct responsibility for the administration of the indenture.
U.S. Government Obligations
means direct obligations (or certificates representing an ownership interest in such
obligations) of the United States of America (including any agency or instrumentality thereof) for the payment of which the full faith and credit of the United States of America is pledged and which are not callable or redeemable at the
issuers option.
Voting Stock
of a Person means all classes of Capital Stock or other interests (including
partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
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TAX CONSIDERATIONS
The information presented under the caption Jersey tax considerations below is a discussion of the material Jersey tax
consequences of investing in the Notes. The information presented under the caption U.K. tax considerations below is a discussion of Delphi Automotive PLCs status as a resident of the United Kingdom for U.K. tax purposes and of the
material U.K. tax consequences of investing in the Notes. The information presented under the caption U.S. federal income tax considerations below is a discussion of the material U.S. federal income tax consequences to U.S. Holders (as
defined below) of investing in the Notes.
You should consult your tax adviser regarding the applicable tax consequences to you of
investing in the Notes under the laws of Jersey, the United Kingdom and the United States (federal, state and local) and any other applicable foreign jurisdiction.
Jersey Tax Considerations
The following
summary of the anticipated treatment of the Issuer and holders of Notes (other than residents of Jersey) is based on Jersey taxation law and practice as they are understood to apply at the date of this document and is subject to changes in such
taxation law and practice. It does not constitute legal or tax advice and does not address all aspects of Jersey tax law and practice. Prospective investors in the Notes should consult their professional advisers on the implications of acquiring,
buying, selling or otherwise disposing of the Notes under the laws of any jurisdiction in which they may be liable to taxation.
Taxation of the Issuer
The Issuer is not regarded as resident for tax purposes in Jersey. Therefore, the Issuer will not be liable to Jersey income tax other
than on Jersey source income (except where such income is exempted from income tax pursuant to the Income Tax (Jersey) Law 1961, as amended) and payments in respect of the Notes may be paid by the Issuer without withholding or deduction for or on
account of Jersey income tax. The holders of Notes (other than residents of Jersey) will not be subject to any tax in Jersey in respect of the holding, sale or other disposition of such Notes.
Stamp Duty
In Jersey, no stamp duty is
levied on the issue or transfer of the Notes except that stamp duty is payable on Jersey grants of probate and letters of administration, which will generally be required to transfer the Notes on the death of a holder of such Notes where such Notes
are situated in Jersey. In the case of a grant of probate or letters of administration, stamp duty is levied according to the size of the estate (wherever situated in respect of a holder of Notes domiciled in Jersey, or situated in Jersey in respect
of a holder of Notes domiciled outside Jersey) and is payable on a sliding scale at a rate of up to 0.75% of such estate. Where the Notes are in registered form and the register is not maintained in Jersey, such Notes should not be considered to be
situated in Jersey for these purposes.
Jersey does not otherwise levy taxes upon capital, inheritances, capital gains or gifts nor are
there other estate duties.
If you are in any doubt as to your tax position you should consult your professional tax adviser.
Certain United Kingdom Tax Considerations
The comments below are of a general nature based on current United Kingdom tax law as applied in England and Wales and HM Revenue & Customs
(the HMRC) practice (which may not be binding on HMRC) and are not intended to be exhaustive. Such law and practice is subject to change, possibly with retrospective effect. The following paragraphs only apply to persons who hold the
Notes as absolute beneficial owners and do
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not address the tax consequences which may be relevant to certain categories of Holders, for example, dealers in securities, financial institutions, banks, insurance companies, collective
investment schemes or persons connected with us or clearance services, intermediaries or persons who benefit from special exemptions or rules. Moreover, the paragraphs below assume that the Holders of the Notes have invested in the Notes for bona
fide commercial purposes and not with the purpose of avoiding a liability for taxation. The comments below are not intended to be, nor should they be considered as, legal or tax advice. Holders of the Notes and prospective investors who are in any
doubt as to their tax position, should consult their own independent professional adviser immediately.
Interest on the Notes
Payment of Interest on the Notes
Payments of interest on the Notes may be made without withholding or deduction for or on account of United Kingdom tax provided that the Notes
are and continue to be listed on a recognised stock exchange within the meaning of Section 1005 of the Income Tax Act 2007. The NYSE is a recognised stock exchange for these purposes.
Interest on the Notes may also be paid without withholding or deduction for or on account of United Kingdom income tax where interest on the
Notes is paid to a company that is the beneficial owner and, at the time the payment is made, the issuer reasonably believes (and any person by or through whom interest on the Notes is paid reasonably believes) that the beneficial owner is within
the charge to United Kingdom corporation tax as regards the payment of interest, provided that HMRC has not given a direction (in circumstances where it has reasonable grounds to believe that it is likely that the above exemption is not available in
respect of such payment of interest at the time the payment is made) that the interest should be paid under deduction of tax.
In other
cases, assuming the interest is treated as arising in the United Kingdom, an amount must generally be withheld from payments of interest on the Notes on account of United Kingdom income tax at the basic rate (currently 20%). However, where an
applicable double taxation treaty provides for a lower rate of withholding tax (or for no tax to be withheld) in relation to a Holder, HMRC can issue a direction to the issuer to pay interest to the Holder without deduction of tax (or for interest
to be paid with tax deducted at the rate provided for in the relevant double taxation treaty).
Any premium payable on redemption may be
treated as a payment of interest for United Kingdom tax purposes and may accordingly be subject to the withholding tax treatment described above.
Interest on the Notes is likely to constitute United Kingdom source income for United Kingdom tax purposes and, accordingly, may be subject to
United Kingdom income tax or corporation tax by self-assessment (regardless of whether or not a withholding or deduction applied). However, where the payments are made without withholding or deduction, the payments will not generally be assessed to
United Kingdom tax in the hands of a Holder who is not resident in the United Kingdom, unless such holder carries on a trade, profession or vocation in the United Kingdom through a branch, agency or permanent establishment in the United Kingdom, in
connection with which the payments are received or the Notes are attributable.
The references to interest above are to
interest as understood for the purposes of United Kingdom tax law. They do not take into account any different definition of interest that may prevail under any other tax law or that may apply under the terms and conditions
of the Notes or any related document.
Payment by Our Subsidiaries as Guarantors
If our subsidiaries, as guarantors of the Notes, make any payments in respect of interest on the Notes (or in respect of other amounts due
under the Notes other than the repayment of amounts subscribed for such Notes)
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such payments may be subject to United Kingdom withholding tax at the basic rate (currently 20%). Such payments by a guarantor may not be eligible for the exemptions from the obligation to
withhold tax described in the paragraph above.
United Kingdom Corporation Tax Payers
In general, Holders of Notes who are within the charge to United Kingdom corporation tax (including non-resident holders of the Notes whose
Notes are used, held or acquired for the purposes of a trade carried on in the United Kingdom through a permanent establishment) should be treated for tax purposes as realizing profits, gains or losses in respect of the Notes on a basis which is
broadly in accordance with their statutory accounts, provided that the accounting treatment is in accordance with generally accepted accounting practice (as that term is defined for United Kingdom tax purposes). Such profits, gains, and losses
(including those attributable to currency fluctuations) will be taken into account in computing taxable income for corporation tax purposes.
Other
United Kingdom Tax Payers
Taxation of Chargeable Gains
An individual Holder of Notes who is resident in the United Kingdom, or who carries on a trade, profession or vocation in the United Kingdom
through a branch or agency to which the Notes are attributable, may have to account for capital gains tax in respect of any gains arising on a disposal of the Notes. Any capital gains would be calculated by comparing the sterling values at the time
of acquisition and disposal. Accordingly, a taxable gain can arise even where the U.S. dollar amount received on a disposal is less than or the same as the U.S. dollar amount paid for the Notes.
Accrued Income Scheme
On a disposal of the Notes, any interest which has accrued since the last interest payment date may, depending on the terms of the relevant
Notes and in particular whether they are deeply discounted securities, be chargeable to tax as income under the rules of the accrued income scheme as set out in Part 12 of the Income Tax Act 2007, if that Holder of Notes is
resident in the United Kingdom or carries on a trade, profession or vocation in the United Kingdom through a branch or agency to which the Notes are attributable.
Taxation of Discount
Depending on the issue price and redemption amount, the Notes may constitute deeply discounted securities for the purposes of
Chapter 8 of Part 4 of the Income Tax (Trading and Other Income) Act 2005. If the Notes are deeply discounted securities, any gain realized on redemption or transfer of the Notes by a Holder who is within the charge to United Kingdom
income tax in respect of the Notes will generally be taxable as income but such Holder will not be able to claim relief from income tax in respect of costs incurred on the acquisition, transfer or redemption, or losses incurred on the transfer or
redemption, of the Notes.
Non-United Kingdom Tax Payers
Holders of Notes who are resident in a jurisdiction outside the United Kingdom and who are neither resident in the United Kingdom nor carrying
on a trade, profession or vocation in the United Kingdom through a branch or agency (or, for Holders who are companies, through a permanent establishment in the United Kingdom) to which the Notes are attributable should not generally be liable to
United Kingdom taxation in respect of a disposal (including redemption) of a Note.
Holders of Notes who are individuals and who have
ceased to be resident in the United Kingdom for a period of five years or less and who dispose of their Notes during that period may be liable on return to the United Kingdom to United Kingdom taxation on chargeable gains arising during that period
of absence, subject to any applicable exemptions or reliefs.
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Stamp Duty and Stamp Duty Reserve Tax
No United Kingdom stamp duty or stamp duty reserve tax should be payable on the issue of the Notes, on their redemption, or on their transfer
through the facilities of The Depository Trust Company.
Taxation of Premium on Early Redemption
It is possible that the Notes may be redeemed prior to maturity at a premium (including at the option of the Issuer). Payment of such premium
may constitute a payment of interest. Such payments of interest may be subject to United Kingdom withholding tax and reporting requirements as outlined above and below.
Provision of Information
Holders may
wish to note that, in certain circumstances, HMRC has power to obtain certain information (including the name and address of the beneficial owner of the interest) from any person in the United Kingdom who either pays or credits interest to or
receives interest for the benefit of a Holder. HMRC also has power, in certain circumstances, to obtain information from any person in the United Kingdom who pays amounts payable on the redemption of Notes which are deeply discounted securities for
the purposes of the Income Tax (Trading and Other Income) Act 2005 to or receives such amounts for the benefit of another person. Such information may include the name and address of the beneficial owner of the amount payable on redemption. Any
information obtained may, in certain circumstances, be exchanged by HMRC with the tax authorities of the jurisdiction in which the Holder is resident for tax purposes.
Financial Transactions Tax
On February
14, 2013, the European Commission published a proposal for a Directive for a common financial transactions tax (the FTT) in Belgium, Germany, Estonia, Greece, Spain, France, Italy, Austria, Portugal, Slovenia and Slovakia (the
participating Member States). Estonia officially announced its withdrawal from the negotiations in March 2016.
The proposed
FTT has very broad scope and could, if introduced in the form proposed on February 14, 2013, apply to certain transactions relating to the Notes (including secondary market transactions) in certain circumstances.
Under the February 14, 2013 proposal, the FTT could apply in certain circumstances to persons both within and outside of the participating
Member States. Generally, it would apply to certain transactions relating to the Notes where at least one party is a financial institution, and at least one party is established in a participating Member State. A financial institution may be, or be
deemed to be, established in a participating Member State in a broad range of circumstances, including (a) by transacting with a person established in a participating Member State or (b) where the financial instrument which is subject to
the dealings is issued in a participating Member State.
The FTT proposal remains subject to negotiation between the participating Member
States. It may therefore be altered prior to any implementation, the timing of which remains unclear. In December 2015, a joint statement was issued by the participating Member States (excluding Estonia), initially indicating an intention to make
decisions on remaining open issues by the end of June 2016. However, failing an agreement on such issues, the participating Member States (excluding Estonia) indicated during the Economic and Financial Affairs Council (ECOFIN) meeting of June 17,
2016, that work and discussions would continue during the second half of 2016. Additional EU Member States may decide to participate and/or certain of the participating Member States may decide to withdraw.
Prospective Holders of the Notes are advised to seek their own professional advice in relation to the FTT.
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