As
filed with the Securities and Exchange Commission on July 25, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933
PACIFICORP
(Exact name of registrant as specified in its charter)
| Oregon |
|
93-0246090 |
(State or other jurisdiction of incorporation or
organization) |
|
(IRS Employer Identification Number) |
825 N.E. Multnomah Street
Portland, Oregon 97232
888-221-7070
(Address, including zip code, and telephone number,
including area code, of registrant’s principal executive offices)
Nikki L. Kobliha
Director, Senior Vice President, Chief Financial
Officer and Treasurer, PacifiCorp
825 N.E. Multnomah Street, Suite 1900
Portland, Oregon 97232
888-221-7070
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copy to:
|
Karen J. Kruse
Vice President and General Counsel, Pacific
Power
825 N.E. Multnomah Street, Suite 2000
Portland, Oregon 97232
(503) 813-5863
|
M. Christopher Hall
Allison C. Handy
Perkins Coie LLP
1120 N.W. Couch Street, Tenth Floor
Portland, Oregon 97209
(503) 727-2000
|
Approximate
date of commencement of proposed sale to the public: From time to time after the effective date of this registration
statement as determined by market conditions and other factors.
If
the only securities being registered on this Form are to be offered pursuant to dividend or interest reinvestment plans, please check
the following box: ¨
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415
under the Securities Act of 1933, as amended (the “Securities Act”), other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box: x
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act,
please check the following box and list the Securities Act registration statement number of the earlier effective registration statement
for the same offering. ¨
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ¨
If
this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective
upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. x
If
this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) of the Securities Act, check the following box. ¨
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of
“large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth
company” in Rule 12b-2 of the Securities Exchange Act of 1934, as amended.
| Large
accelerated filer ¨ |
|
Accelerated
filer ¨ |
|
| Non-accelerated
filer x |
|
Smaller
reporting company ¨ |
|
| |
|
Emerging
growth company ¨ |
|
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ¨
PROSPECTUS
PACIFICORP
FIRST MORTGAGE BONDS
UNSECURED DEBT SECURITIES
PacifiCorp, an Oregon corporation, may from time
to time offer first mortgage bonds and unsecured debt securities (together, the “securities”) in one or more issuances or
series at prices and on terms to be determined at the time of sale.
We will provide specific terms of the securities,
including, as applicable, the amount offered, offering prices, interest rates, maturities and redemption or repurchase provisions, in
supplements to this prospectus. The supplements may also add, update or change information contained in this prospectus. You should read
this prospectus and any supplements carefully before you invest.
We may sell the securities directly to purchasers
or through agents designated from time to time or through one or more underwriters or dealers, on a continuous or delayed basis. The supplements
to this prospectus will describe the terms of any particular plan of distribution, including any underwriting arrangements. The “Plan
of Distribution” section in this prospectus provides more information on this topic.
This prospectus may not be used to consummate sales
of securities unless accompanied by a prospectus supplement relating to the securities offered.
Investing in our securities involves risks.
See the “Risk Factors” section beginning on page 3 of this prospectus for information on certain matters you should consider
before buying our securities.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or passed upon the adequacy or accuracy of this prospectus.
Any representation to the contrary is a criminal offense.
The date of this prospectus is July 25, 2024.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement
that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) using the “shelf” registration
process. Under this shelf registration process, we may from time to time sell the securities described in this prospectus in one or more
offerings. This prospectus provides a general description of the securities. Each time we sell securities, we will provide a prospectus
supplement that will contain specific information about the terms of that offering. That prospectus supplement may include or incorporate
by reference a detailed and current discussion of any risk factors and will discuss any special considerations applicable to those securities.
The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus
and any prospectus supplement together with additional information described under “Where You Can Find More Information.”
If there is any inconsistency between the information in this prospectus and any prospectus supplement related to offered securities,
you should rely on the information contained in that prospectus supplement.
Unless otherwise indicated or unless the context
otherwise requires, in this prospectus, the words “PacifiCorp,” “Company,” “we,” “our”
and “us” refer to PacifiCorp, an Oregon corporation, and its subsidiaries.
For more detailed information about the securities,
you can read the exhibits to the registration statement. Those exhibits have been either filed with the registration statement or incorporated
by reference to earlier SEC filings listed in the registration statement. See “Where You Can Find More Information” and “Incorporation
by Reference.”
You should rely only on the information contained
in, or incorporated by reference in, this prospectus and any prospectus supplement. We have not, and any underwriters, agents or dealers
have not, authorized anyone else to provide you with different information. We are not, and any underwriters, agents or dealers are not,
making an offer of these securities in any state where the offer or sale is not permitted. You should not assume that the information
contained in this prospectus and any prospectus supplement is accurate as of any date other than the date on the front of the prospectus
supplement or that the information incorporated by reference in this prospectus is accurate as of any date other than the date on the
front of those documents. Our business, financial condition and results of operations may have changed since that date.
FORWARD-LOOKING STATEMENTS
This prospectus, any accompanying prospectus supplement
and the additional information referred to under the heading “Where You Can Find More Information” may contain “forward-looking
statements” within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section
21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which are subject to the safe harbor created
by the Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact are “forward-looking
statements” for purposes of these provisions. Examples include discussions as to our expectations, beliefs, plans, goals, objectives
and future financial or other performance or assumptions concerning matters discussed, including through incorporation by reference, in
this prospectus. This information, by its nature, involves estimates, projections, forecasts, risks and uncertainties that could cause
actual results or outcomes to differ substantially from those expressed in the forward-looking statements found in this prospectus and
the documents incorporated by reference in this prospectus.
Our business is influenced by many factors that
are difficult to predict, involve uncertainties that may materially affect actual results and are often beyond our ability to control.
We have identified a number of these factors in our filings with the SEC, including the Form 10-K, the Form 10-Q and the Forms 8-K incorporated
by reference in this prospectus, and we refer you to those reports for further information.
Any forward-looking statement speaks only as of
the date on which it is made, and we undertake no obligation to update any forward-looking statement to reflect events or circumstances
after the date on which it is made. The forward-looking statements in this prospectus and the documents incorporated by reference in this
prospectus are qualified in their entirety by the preceding cautionary statements.
THE COMPANY
PacifiCorp, an indirect wholly owned subsidiary
of Berkshire Hathaway Energy Company (“BHE”), is a U.S. regulated electric utility company headquartered in Oregon that serves retail
electric customers in portions of Utah, Oregon, Wyoming, Washington, Idaho and California. We are principally engaged in the business
of generating, transmitting, distributing and selling electricity. Our combined service territory includes diverse regional economies
across six states. No single segment of the economy dominates the combined service territory, which helps mitigate our exposure to economic
fluctuations. In the eastern portion of the service territory, consisting of Utah, Wyoming and southeastern Idaho, the principal industries
are manufacturing, mining or extraction of natural resources, agriculture, technology, recreation and government. In the western portion
of the service territory, consisting of Oregon, southern Washington and northern California, the principal industries are agriculture,
manufacturing, forest products, food processing, technology, government and primary metals. In addition to retail sales, we buy and sell
electricity on the wholesale market with other utilities, energy marketing companies, financial institutions and other market participants
to balance and optimize the economic benefits of electricity generation, retail customer loads and existing wholesale transactions. Certain
of our subsidiaries support our electric utility operations by providing coal mining services.
Our operations are conducted under numerous franchise
agreements, certificates, permits and licenses obtained from federal, state and local authorities. Several of these franchise agreements
allow the municipality the right to seek amendment to the franchise agreement at a specified time during the term. We generally have an
exclusive right to serve electric customers within our service territories and, in turn, have an obligation to provide electric service
to those customers. In return, the state utility commissions have established rates on a cost-of-service basis, which are designed to
allow us an opportunity to recover our costs of providing services and to earn a reasonable return on our investments.
We were incorporated under
the laws of the state of Oregon in 1989 and our principal executive offices are located at 825 N.E. Multnomah Street, Suite 2000, Portland,
Oregon 97232, our telephone number is (888) 221-7070 and our internet address is http://www.pacificorp.com. We deliver electricity
to customers in Utah, Wyoming and Idaho under the trade name Rocky Mountain Power and to customers in Oregon, Washington and California
under the trade name Pacific Power.
All shares of our common stock are indirectly
owned by BHE. We also have shares of preferred stock outstanding that are subject to voting rights in certain limited circumstances.
For additional information concerning our business
and affairs, including our capital requirements, external financing arrangements and pending legal and regulatory proceedings, including
descriptions of those laws and regulations to which we are subject, prospective purchasers should refer to the documents incorporated
by reference into this prospectus as described in the sections entitled “Where You Can Find More Information” and “Incorporation
by Reference.”
RISK FACTORS
Investing in our securities involves risk. Before
purchasing any securities we offer, you should carefully consider the risk factors described in our periodic reports filed with the SEC,
as well as the other information contained in this prospectus, any prospectus supplement and the information incorporated by reference
herein in order to evaluate an investment in our securities. See “Forward-Looking Statements”, “Where You Can Find More
Information” and “Incorporation by Reference” in this prospectus. Additional risks and uncertainties that are not yet
identified or that we currently believe are immaterial may also materially harm our business, operating results and financial condition
and could result in a loss on your investment.
USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement,
the net proceeds to be received by us from the issuance and sale of the securities will initially become part of our general funds and
will be used for capital expenditures or utility asset purchases, to repay all or a portion of our short- or long-term borrowings and
for general corporate purposes.
DESCRIPTION OF FIRST MORTGAGE BONDS
This section of this prospectus describes the
general terms and provisions of the first mortgage bonds that we may offer, which may be issued from time to time in one or more series.
For a description of unsecured debt securities that we may offer, see “Description of Unsecured Debt Securities.” When we
offer to sell a particular series of first mortgage bonds, we will describe the specific terms of the series in a prospectus supplement
to this prospectus. We will also indicate in the applicable prospectus supplement whether the general terms and provisions described in
this prospectus apply to a particular series of first mortgage bonds.
General
We may issue first mortgage bonds from time to
time under our Mortgage and Deed of Trust, dated as of January 9, 1989, as amended and supplemented (the “Mortgage”),
with The Bank of New York Mellon Trust Company, N.A. (as successor trustee to JPMorgan Chase Bank, N.A.) (the “Mortgage Trustee”).
The following summary is subject to the provisions of and is qualified by reference to the Mortgage, a copy of which is incorporated by
reference as an exhibit to this Registration Statement. Whenever particular provisions or defined terms in the Mortgage are referred to
in the following summary, those provisions or defined terms are found in the Mortgage. Section and Article references used below
are references to provisions of the Mortgage unless we otherwise note. When we refer to “bonds” in this section, we refer
to all first mortgage bonds issued under the Mortgage, including any bonds that may be offered pursuant to this prospectus.
We expect to issue bonds in the form of fully registered
bonds and, except as may be set forth in any prospectus supplement, in denominations of $2,000 and any integral multiples of $1,000 in
excess thereof. The bonds may be transferred without charge, other than for applicable taxes or other governmental charges, at the offices
of the Mortgage Trustee. See “Global Securities.”
Maturity and Interest Payments
The prospectus supplement relating to any bonds
will set forth the date or dates on which those bonds will mature, the rate or rates per annum at which those bonds will bear interest
and the times at which any interest will be payable. Those terms, as well as other terms and conditions of the bonds, including those
related to redemption and purchase referred to under “Redemption or Purchase of Bonds” below, will be established by us at
the time we issue the bonds.
Redemption or Purchase of Bonds
The prospectus supplement relating to any particular
series of bonds will set forth the redemption or repurchase terms and other specific terms of those bonds.
If we elect or are required to redeem all or part
of the bonds, we will provide a notice of redemption in accordance with the Mortgage at least 10 days prior to the redemption date unless
otherwise provided in a supplemental indenture to the Mortgage. A failure to duly give notice to any bondholder will not affect the validity
of the redemption of any other bond. A notice of redemption may be subject to the receipt of the redemption amount by the Mortgage Trustee
on or before the date fixed for redemption and will be of no effect unless the redemption amount is received. If the redemption amount
is held by the Mortgage Trustee for redemption, on and after the redemption date the bonds subject to redemption will cease to bear interest
and will cease to be entitled to the lien of the Mortgage. (Section 12.02)
We may request that cash deposited under any provisions
of the Mortgage be applied (with specific exceptions) to the redemption or repurchase of bonds of any series. (Section 7.03, Section
12.05 and Section 13.06)
There is no sinking or analogous fund in the Mortgage.
Security and Priority
The bonds will be issued under the Mortgage and
secured by a first mortgage lien on certain utility property owned from time to time by us. Any bonds issued will be equally and ratably
secured with all other bonds issued under the Mortgage.
The Mortgage excepts from its lien, among others,
all cash and securities (except as specifically deposited with the Mortgage Trustee in certain circumstances); equipment, materials or
supplies held for sale or other disposition; any fuel and similar consumable materials and supplies; automobiles, other vehicles, aircraft,
boats and vessels; timber, crops, minerals, mineral rights and royalties; receivables, general intangibles, contracts, leases and operating
agreements (except those specifically pledged); electric energy, gas, water, steam and other products for sale, distribution or other
use; natural gas wells and leases; gas transportation lines or other property used in the sale of natural gas to customers or to a natural
gas distribution or pipeline company, up to the point of connection with any distribution system; and our interest in the Wyodak coal-fueled
generation facility. The lien of the Mortgage is also subject to Excepted Encumbrances, including tax and construction liens, purchase
money liens, certain rights of and obligations to public authorities and others, certain easements, restrictions, exceptions or reservations
related to our property and rights of way, and other specific exceptions. (Section 1.06) We have reserved the right, without any consent
or other action by holders of bonds of the Ninth Series or any subsequently created series of bonds, to amend the Mortgage in
order to except from the lien of the Mortgage allowances allocated to steam-electric generating plants owned by us, or in which we have
interests,
pursuant to Title IV of the Clean Air Act Amendments of 1990, as now in effect or as hereafter supplemented or amended. (See
Section 5.01 of the Thirty-Fifth Supplemental Indenture)
The Mortgage subjects after-acquired property to
the mortgage lien, generally subject to the exceptions discussed above. In addition, after-acquired property may be subject and subordinate
to a Class “A” Mortgage, purchase money mortgages and other liens or defects in title. A Class “A” Mortgage
is a mortgage or similar indenture of a company that is merged into or consolidated with us and designated by us as a Class “A”
Mortgage. (Section 1.02)
The Mortgage provides that the Mortgage Trustee
shall have a lien on the mortgaged property, prior to the holders of bonds, for the payment of its reasonable compensation and expenses
and for indemnity against certain liabilities. (Section 19.09)
Issuance of Bonds
An unlimited principal amount of bonds may be issued
under the Mortgage. Bonds of any series may be issued from time to time on the basis of:
(1)
70% of the cost or fair value of qualified Property Additions after certain adjustments, as determined in accordance with the terms
of the Mortgage;
(2)
Class “A” Bonds (which need not bear interest) issued under a Class “A” Mortgage delivered to the Mortgage
Trustee;
(3)
retirement of bonds or certain prior lien bonds; and/or
(4)
deposits of cash.
With certain exceptions in the case of clauses
(2) and (3) above, the issuance of bonds is subject to our Adjusted Net Earnings for 12 consecutive months out of the preceding
15 months, before interest expense and income taxes, being at least twice the Annual Interest Requirements on all outstanding bonds
issued under the Mortgage, all outstanding Class “A” Bonds not held by the Mortgage Trustee, all other indebtedness secured
by a lien prior to the lien of the Mortgage and all bonds then applied for in pending bond issuance applications under the Mortgage. In
general, interest on variable interest bonds, if any, is calculated using the rate then in effect. (Section 1.07 and Articles IV
through VII)
Property Additions generally include property used
in generating, transmitting, transporting, supplying and managing the use of energy or fuel in any form, other than, generally, property
excepted from the Mortgage as described above such as fuel, rolling stock, property which is chargeable as an operating expense, and property
used principally for the production or gathering of natural gas. (Section 1.04)
Release and Substitution of Property
Property subject to the Mortgage may be released
generally on the basis of:
(1)
the release of that property from a Qualified Lien;
(2)
the deposit of cash, outstanding bonds or, to a limited extent, purchase money mortgages;
(3)
Property Additions, after making adjustments for certain prior lien bonds outstanding against Property Additions; and/or
(4)
a waiver of the right to issue bonds on the basis of bond retirements.
Funded Cash, as defined in Section 1.05 of the
Mortgage, may be withdrawn upon the bases stated in (3) and (4) above. The Mortgage contains special provisions with respect
to certain prior lien bonds deposited and disposition of moneys received in respect of deposited prior lien bonds. In addition, the Mortgage
provides an alternative provision (Section 13.04) for release of property that does not constitute Funded Property (generally, “Funded
Property” is property that was used as the basis for bond issuances or other property releases). This alternative provision does
not require any of the basis for release described above and instead requires, among other conditions, the amount of outstanding bonds
to not exceed 70% of the fair value of the then Funded Property at the time of the release. (Sections 1.05, 7.02, 9.05, 10.01 through
10.04 and 13.03 through 13.09)
Merger, Consolidation, Conveyance, Transfer or Lease
We may consolidate or merge with any company carrying
on a similar business as us, or convey, transfer or lease all or substantially all of our property to another company, generally provided
that the action fully preserves and does not impair the lien of the Mortgage or the rights of the Mortgage Trustee and bondholders. (Section
18.01) In those circumstances, the Mortgage will not be required to become a lien upon any of the properties owned or thereafter acquired
by the successor company. (Section 18.03) The Mortgage further provides that in the event of the merger or consolidation of another
company with or into us or the conveyance or transfer to us by another company of all or substantially all of that company’s property
that is of the same character as Property Additions, as defined in the Mortgage, an existing mortgage constituting a first lien on operating
properties of that other company may be designated by us as a Class “A” Mortgage. (Section 11.06) Bonds thereafter
issued pursuant to the additional mortgage would be Class “A” Bonds and could provide the basis for the issuance of bonds
under the Mortgage.
Certain Covenants
The Mortgage contains a number of covenants by
us for the benefit of the holders of the bonds, including provisions requiring us to maintain the mortgaged property as an operating system
or systems capable of engaging in all or any of the generating, transmission, distribution or other utility businesses described in the
Mortgage. (Article IX)
Dividend Restrictions
The Mortgage provides that we may not declare or
pay dividends (other than dividends payable solely in shares of our common stock) on any shares of our common stock if, after giving effect
to the declaration or payment, we would not be able to pay our debts as they become due in the usual course of business. (Section 9.07)
Foreign Currency Denominated Bonds
The Mortgage authorizes the issuance of bonds denominated
in foreign currencies, provided that we deposit with the Mortgage Trustee a currency exchange agreement with an entity having, at the
time of the deposit, a financial rating at least as high as our financial rating that, in the opinion of an independent accountant, appraiser
or other expert, gives us at least as much protection against currency exchange
fluctuation as is usually obtained by similarly situated
borrowers. (Section 2.03) We believe that this type of currency exchange agreement will provide effective protection against
currency exchange fluctuations. However, if the other party to the exchange agreement defaults and the foreign currency is valued higher
at the date of maturity than at the date of issuance of the relevant bonds, holders of those bonds would have a claim on our assets that
is greater than the claim to which holders of dollar-denominated bonds issued at the same time would be entitled.
The Mortgage Trustee
The Bank of New York Mellon Trust Company, N.A.
or its affiliates may act as a lender, trustee or agent under other agreements and indentures involving us and our affiliates.
Modification
The rights of bondholders may be modified with
the consent of holders of at least 60% of the principal amount of the bonds outstanding, or, if not all series of bonds are adversely
affected, the consent of the holders of at least 60% of the principal amount of the outstanding bonds adversely affected. In general,
no modification of the terms of payment of principal, premium, if any, or interest and no modification permitting the creation of a lien
ranking prior to or on a parity with the lien of the Mortgage or reducing the percentage required for modification is effective against
any bondholder without the consent of the holder. (Section 21.07)
Unless we are in default in the payment of the
interest on any bonds then Outstanding under the Mortgage or there is a Default under the Mortgage, the Mortgage Trustee generally is
required to vote Class “A” Bonds held by it with respect to any amendment of the applicable Class “A”
Mortgage proportionately with the vote of the holders of all Class “A” Bonds then actually voting. (Section 11.03)
Defaults and Notice Thereof
“Defaults” are defined in the Mortgage
as:
(1)
default in payment of principal;
(2)
default for 60 days in payment of interest or an installment of any fund required to be applied to the purchase or redemption
of any bonds;
(3)
default in payment of principal or interest with respect to certain prior lien bonds beyond any grace period;
(4)
certain events in bankruptcy, insolvency or reorganization;
(5)
default in other covenants for 90 days after notice; or
(6)
the existence of any default under a Class “A” Mortgage that permits the declaration of the principal of all the bonds
secured by the Class “A” Mortgage and the interest accrued thereupon due and payable. (Section 15.01)
An effective default under any Class “A”
Mortgage or under the Mortgage will result in an effective default under all those mortgages. The Mortgage Trustee may withhold notice
of default (except in payment of principal, interest or funds for retirement of bonds) if it determines that it is not detrimental to
the interests of the bondholders. (Section 15.02)
The Mortgage Trustee or the holders of 25% of the
principal amount of the bonds outstanding may declare the principal and interest due and payable on Default, but a majority may annul
the declaration if the Default has been cured. (Section 15.03) No holder of bonds may enforce the lien of the Mortgage unless
the Mortgage Trustee is given written notice of a Default and the Mortgage Trustee fails to act after the holders of 25% of the principal
amount of the bonds outstanding have requested in writing the Mortgage Trustee to act, offered it reasonable opportunity to act and offered
an indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred when enforcing the lien. (Section 15.16) The
holders of a majority of the bonds may direct the time, method and place of conducting any proceedings for any remedy available to the
Mortgage Trustee or exercising any trust or power conferred on the Mortgage Trustee, although the Mortgage Trustee has the right to decline
to follow the direction if it involves personal liability or would be unjustifiably prejudicial to nonassenting bondholders, among other
reasons. (Section 15.07) The Mortgage Trustee is not required to risk its funds or incur personal liability if there is reasonable
ground for believing that repayment is not reasonably assured. (Section 19.08)
Defeasance
Under the terms of the Mortgage, we will be discharged
from any and all obligations under the Mortgage in respect of the bonds of any series if we deposit with the Mortgage Trustee, in trust,
moneys or government obligations, in an amount sufficient to pay all the principal of, premium (if any) and interest on, the bonds of
those series or portions thereof, on the redemption date or maturity date thereof, as the case may be. The Mortgage Trustee need not accept
the deposit unless it is accompanied by an opinion of counsel to the effect that (a) we have received from, or there has been published
by, the Internal Revenue Service a ruling or, (b) since the date of the Mortgage, there has been a change in applicable federal income
tax law, in either case to the effect that, and based thereon the opinion of counsel shall confirm that, the holders of the bonds or the
right of payment of interest thereon (as the case may be) will not recognize income, gain or loss for federal income tax purposes as a
result of the deposit, and/or ensuing discharge and will be subject to federal income tax on the same amount and in the same manner and
at the same times, as would have been the case if the deposit and/or discharge had not occurred. (Section 20.02)
Upon the deposit, our obligation to pay the principal
of (and premium, if any) and interest on those bonds shall cease, terminate and be completely discharged and the holders of such bonds
shall thereafter be entitled to receive payment solely from the funds deposited. (Section 20.02)
DESCRIPTION OF UNSECURED DEBT SECURITIES
This section of this
prospectus describes the general terms and provisions of the unsecured debt securities that we may offer, which may be issued as senior
unsecured debt securities or subordinated unsecured debt securities (which may include junior subordinated unsecured debt securities,
senior subordinated unsecured debt securities and subordinated unsecured debt securities of any other relative ranking). For a description
of the first mortgage bonds that we may offer, see “Description of First Mortgage Bonds.” When we offer to sell a particular
series of unsecured debt securities, we will describe the specific terms of the series in a prospectus supplement to this prospectus.
We will also indicate in the applicable prospectus supplement whether the general terms and provisions described in this prospectus apply
to a particular series of unsecured debt securities.
General
We may issue senior debt
securities or subordinated debt securities, in addition to the first mortgage bonds described under “Description of First Mortgage
Bonds.” Both the senior debt securities and the subordinated debt securities will be our direct unsecured obligations. The senior
debt securities and the subordinated debt securities will be issued under a senior indenture and a subordinated indenture, respectively,
in each case between us and The Bank of New York Mellon Trust Company, N.A., as trustee. The following summary of certain provisions of
the indentures does not purport to be complete and is qualified in its entirety by reference to the detailed provisions of the forms of
indentures (copies of which are filed as exhibits to the registration statement of which this prospectus is a part). Except to the extent
set forth in a prospectus supplement for a particular series of debt securities, the indentures, as amended or supplemented from time
to time, will be substantially similar to the forms of indentures filed as exhibits to the registration statement and described below.
Prospectus Supplement
A prospectus supplement
relating to a series of debt securities being offered will include specific terms relating to the offering. These terms may include:
| · | the title of the series of debt securities; |
| · | whether the series of debt securities are senior debt securities or subordinated debt securities; |
| · | the aggregate principal amount (or any limit on the aggregate principal amount) of the series of debt securities and, if any debt
securities of a series are to be issued at a discount from their face amount, the method of computing the accretion of such discount; |
| · | if other than the entire principal amount thereof, the portion of the principal amount of the debt securities payable upon declaration
of acceleration of the maturity thereof; |
| · | the rate or rates of interest, if any, which will be borne by such debt securities, which may be fixed or variable; |
| · | the date from which interest will accrue; |
| · | the record date for interest payable on the debt securities; |
| · | the maturity date of the debt securities; |
| · | the dates when, places where and manner in which principal, premium, if any, and interest will be payable; |
| · | the securities registrar if other than the trustee; |
| · | the terms of any mandatory redemption (including any sinking fund requirement) or any redemption at our option; |
| · | the terms of any redemption at the option of holders of the debt securities; |
| · | the denominations in which the debt securities are issuable; |
| · | whether the debt securities will be represented by a global security and the terms of any such global security; |
| · | the currency or currencies (including any composite currency) in which principal or interest or both may be paid; |
| · | any events of default, covenants or defined terms in addition to or in lieu of those set forth in the applicable indenture; |
| · | whether and upon what terms the debt securities may be defeased; |
| · | any rights that would allow an interest payment date in connection with any series of debt securities to be deferred or extended; |
| · | any special tax implications of the debt securities; and |
| · | any other terms in addition to or different from those contained in the applicable indenture. |
The debt securities may
bear interest at a fixed or a floating rate, or may bear no interest. Debt securities bearing no interest or bearing interest at a rate
below the prevailing market rate at the time of issuance may be deemed to be issued at a discount below their stated principal amount.
Further, the holders of any debt securities as to which we have the right to defer interest may be allocated interest income for federal
and state income tax purposes without receiving equivalent, or any, interest payments. Material federal income tax consequences may result
from any such deemed original issue discount or interest deferrals. Any such material federal income tax consequences will be described
in the applicable prospectus supplement.
Ranking of Senior Debt Securities; Ranking
of Subordinated Debt Securities
The senior debt securities
will rank senior to our subordinated debt securities and any of our other indebtedness that by its terms is subordinated in right of payment
to the senior debt securities. In addition, the senior debt securities will rank pari passu in right of payment with
our other senior indebtedness, but will effectively rank junior to our senior secured indebtedness, including the first mortgage bonds
described in this prospectus, to the extent of the value of the collateral securing such senior secured indebtedness.
The subordinated debt
securities will be subordinate and junior in right of payment to the senior debt securities, the first mortgage bonds described in this
prospectus and all of our other current and future senior debt. Unless otherwise specified in the applicable prospectus supplement, no
payments on the subordinated debt securities may be made if (1) any senior debt is not paid when due or (2) the maturity of
any senior debt has been accelerated because of a default. Upon any distribution of our assets to creditors upon a bankruptcy, insolvency,
liquidation, reorganization or similar event, all amounts due on our senior debt must be paid before any payments are made on the subordinated
debt securities.
Neither the subordinated
indenture nor the senior indenture will limit the amount of senior debt (whether secured or unsecured) that we can incur, and the mortgage
bond indenture will not limit the amount of senior unsecured debt that we can incur.
Redemption or Repurchase
The prospectus supplement relating to any particular
series of debt securities will set forth the redemption or repurchase terms and other specific terms of those debt securities.
If we elect or are required to redeem all or part
of any series of debt securities, we will provide a notice of redemption at least 10 days prior to the redemption date. A failure to duly
give notice to any applicable holder will not affect the validity of the redemption of any other debt securities. A notice of redemption
may be subject to the receipt of the redemption amount by the applicable trustee on or before the date fixed for redemption and will be
of no effect unless the redemption amount is received. If the redemption amount is held by the applicable trustee for redemption, on and
after the redemption date the debt securities subject to redemption will cease to bear interest.
Consolidation, Merger, Conveyance, Transfer or Lease
We may consolidate or merge with or into, or convey,
transfer or lease all or substantially all of our properties and assets to, another corporation or other entity. Any successor must, however,
(i) be organized under the laws of the United States, any state there of or the District of Columbia, and (ii) assume our obligations
under any outstanding series of debt securities and the indentures applicable thereto. When those conditions are satisfied, the successor
will succeed to and be substituted for us under the applicable indenture, and we will be relieved of our obligations under such indenture
and any debt securities issued thereunder.
Events of Default
Except as described
in the applicable prospectus supplement, the following will constitute events of default under the applicable indenture:
| · | we fail to pay interest on the applicable series of debt securities when due and such failure continues for 30 days; provided that,
if applicable, for this purpose, the date on which interest is due is the date on which we are required to make payment following any
deferral of interest payments by us under the terms of the applicable series of debt securities that permit such deferral; |
| · | we fail to pay principal of, and premium, if any, on the applicable series of debt securities when due; |
| · | we breach any other covenant or representation in the applicable indenture and such breach continues for 90 days (such period to be
extended if we are diligently pursuing a cure) after we receive a notice of default with respect thereto; |
| · | a decree or order is entered against us in an involuntary bankruptcy proceeding and is not vacated in 90 days, or a similar involuntary
event relating to our bankruptcy or insolvency occurs and continues for 90 days; or |
| · | we commence a voluntary bankruptcy case or take similar voluntary actions relating to our bankruptcy or insolvency. |
Upon the occurrence and
continuance of an event of default under an indenture with respect of a series, the trustee or holders of a majority in aggregate principal
amount of the applicable series of debt securities may declare such debt securities to be immediately due and payable. After the declaration
of acceleration has been made with respect to any series and before the trustee has obtained a judgment or
decree for payment of the money
due, the event of default giving rise to the declaration will be deemed to have been waived and the declaration and its consequences will
be rescinded and annulled if:
| · | the Company has paid or deposited with the trustee all overdue interest, the principal and any premium due otherwise than by the declaration
and any interest on such amounts, and any interest on overdue interest, to the extent legally permitted, in each case with respect to
that series, and all amounts due to the trustee; and |
| · | all events of default with respect to that series, other than the nonpayment of the principal that became due solely by virtue of
the declaration, have been cured or waived. |
Prior to acceleration,
holders of a majority in aggregate principal amount of the applicable series of unsecured debt securities may waive an event of default,
other than (1) an event of default related to non-payment of principal, premium, if any, or interest and (2) an event of default related
to a covenant or other provision of the applicable unsecured indenture that cannot be modified without the consent of each holder of unsecured
debt securities affected thereby
The trustee shall be
under no obligation to exercise any of the rights or powers vested in it by the applicable indenture at the request or direction of any
of the holders pursuant to the applicable indenture, unless such holders shall have offered to the trustee security and/or indemnity satisfactory
to the trustee against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Satisfaction and Discharge, Legal Defeasance and Covenant Defeasance
Upon our written request, each indenture with
respect to any series of debt securities shall be satisfied and discharged (except as to certain surviving rights and obligations specified
in such indenture) when:
| · | either all debt securities have been delivered to the applicable trustee for cancellation or all debt
securities not delivered to the applicable trustee for cancellation have become due and payable by reason of the sending of a notice of
redemption or otherwise or will become due and payable within one year (at maturity or due to redemption) and we have irrevocably deposited
with such trustee money or government obligations sufficient (without reinvestment of interest earned thereon) to pay and discharge the
debt securities to the applicable date of maturity or redemption (including principal, any premium and interest thereon); |
| · | no event of default shall have occurred and be continuing on the date of the deposit or, in the case
of any cross-acceleration default or judgment default, at any time during the period ending on the 91st day after the date of such deposit
or, if longer, ending on the day following the expiration of the longest preference period applicable to the Company in respect of such
deposit; |
| · | we have paid or caused to be paid all other sums payable by us under the indenture; and |
| · | we have delivered to the applicable trustee an officers’ certificate and an opinion of counsel
stating that all conditions precedent relating to the satisfaction and discharge of the indenture have been satisfied. |
Each indenture provides that we may be:
| · | discharged from its obligations, with certain limited exceptions, with respect to any series of debt
securities, as described in such indenture, such a discharge being called a “legal defeasance” in this prospectus; and
|
| · | released from its obligations under certain restrictive covenants established with respect to any series
of debt securities, as described in such indenture, such a release being called a “covenant defeasance” in this prospectus. |
We must satisfy certain conditions to effect a
legal defeasance or covenant defeasance. Those conditions include the irrevocable deposit with the applicable trustee, in trust, of money
or government obligations which through their scheduled payments of principal and interest would provide sufficient money (without reinvestment
of interest earned thereon) to pay the principal and any premium and interest on those debt securities on the stated maturity date for
payment thereof or upon the applicable redemption date, as the case may be. We must also deliver to the applicable trustee an opinion
of counsel stating that, under then-existing United States federal income tax law, the holders of such debt securities will not recognize
income, gain or loss for United States federal income tax purposes as a result of such defeasance.
Following a legal defeasance, payment of the debt
securities defeased may not be accelerated because of an event of default under the applicable indenture. Following a covenant defeasance,
the payment of debt securities may not be accelerated by reference to the covenants from which we have been released. A legal defeasance
may occur after a covenant defeasance.
Option to Extend Interest Payment Period
To the extent specified in the applicable prospectus
supplement or other offering materials, we may elect to defer interest payments on the debt securities by extending the interest payment
period for the number of consecutive extension periods specified in the applicable prospectus supplement or other offering materials (each,
an extension period). Other details regarding the extension period will also be specified in the applicable prospectus supplement or other
offering materials. No extension period may extend beyond the maturity of the applicable series of debt securities. At the end of the
extension period(s), we will pay all then accrued and unpaid interest.
Modifications to the Indenture
Except as otherwise set forth in the applicable
prospectus supplement, the unsecured debt securities will be subject to provisions which allow us and the trustee to amend the applicable
unsecured indenture without the consent of any holder of unsecured debt securities for the following purposes:
| · | to cure ambiguities or to cure, correct or supplement any defective or inconsistent provisions, provided
that the amended provision shall not adversely affect the interests of holders of outstanding unsecured debt securities in any material
respect; |
| · | to add covenants, events of default or collateral, or to surrender a right or power conferred upon us
in the applicable unsecured indenture; |
| · | to establish the form of additional unsecured debt securities in accordance with the terms of the applicable
unsecured indenture; |
| · | to evidence the succession of another company to us and the assumption by the successor of our obligations
under the applicable unsecured indenture; |
| · | to grant to or confer upon the trustee for the benefit of the holders any additional rights, remedies,
powers or authority; |
| · | to permit the trustee to comply with any duties imposed upon it by law; |
| · | to specify further the duties and responsibilities of, and to define further the relationships among,
the trustee and any authenticating agent or paying agent for the unsecured debt securities; and |
| · | to change or eliminate any of the provisions of the applicable unsecured indenture, so long as the change
or elimination becomes effective only when there are no unsecured debt securities outstanding that were created prior to the execution
of the supplemental indenture or other document evidencing such change or elimination. |
Except as set forth in the applicable prospectus
supplement, the unsecured debt securities will be subject to certain provisions which allow us and the trustee to amend the applicable
unsecured indenture for any other purpose with the consent of holders of a majority in aggregate principal amount of the applicable series
of unsecured debt securities, other than amendments which:
| · | change the stated maturity of the applicable series of unsecured debt securities; |
| · | reduce the principal amount of the applicable series of unsecured debt securities; |
| · | reduce the interest rate for the applicable series of unsecured debt securities; |
| · | extend the dates for scheduled payments of principal and interest on the applicable series of unsecured
debt securities; |
| · | impair the right of a holder of the applicable series of unsecured debt securities to institute suit
for the payment of its unsecured debt securities; or |
| · | reduce the percentage of holders of unsecured debt securities required to consent to amendments or waive
defaults under the applicable unsecured indenture. |
The items described in the first five bullets above
will require the consent of all holders of senior unsecured debt securities or subordinated unsecured debt securities, as the case may
be, affected by the amendment. The item described in the last bullet above will require the consent of all holders of senior unsecured
debt securities or subordinated unsecured debt securities, as the case may be.
In addition, any amendment to, or waiver of, the
provisions of the unsecured subordinated indenture relating to subordination that adversely affects the rights of the holders of the subordinated
unsecured debt securities will require the consent of the holders of at least 75% in aggregate principal amount of subordinated unsecured
debt securities then outstanding.
No
Personal Liability of Directors, Officers, Employees and Stockholders
No past, present or future director, officer,
employee, incorporator, member, manager, partner (whether general or limited) or stockholder of the Company, as such, will have any liability
for any of our obligations under the debt securities or the indentures or for any claim based on, in respect of, or by reason of, such
obligations or their creation. Each holder of debt securities by accepting a debt security waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the debt securities. The waiver may not be effective to waive liabilities
under the federal securities laws.
Governing Law
The senior indenture
and the subordinated indenture will be governed by the laws of the State of New York.
GLOBAL SECURITIES
The securities of any
series may be represented, in whole or in part, by one or more global securities. Each global security will:
| · | be registered in the name of a depositary or nominee thereof that we will identify in the applicable prospectus supplement; |
| · | be deposited with the depositary or nominee or custodian; and |
| · | bear any required legends. |
As long as the depositary,
or its nominee, is the registered holder of a global security, the depositary or nominee will be considered the sole owner and holder
of the securities represented by the global security for all purposes under the securities and the applicable indenture. Except in the
limited circumstances described below, owners of beneficial interests in a global security:
| · | will not be entitled to have the securities registered in their names; |
| · | will not be entitled to physical delivery of certificated securities; and |
| · | will not be considered to be holders of those securities under the securities or the applicable indenture. |
Payments on a global
security will be made to the depositary or its nominee as the holder of the global security. Some jurisdictions have laws that require
that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may impair the ability to
transfer beneficial interests in a global security.
Institutions that have
accounts with the depositary or its nominee are referred to as “participants.” Ownership of beneficial interests in a global
security will be limited to participants and to persons that may hold beneficial interests through participants. The depositary will credit,
on its book-entry registration and transfer system, the respective principal amounts of securities represented by the global security
to the accounts of its participants.
Ownership of beneficial
interests in a global security will be shown on and effected through records maintained by the depositary, with respect to participants’
interests, or any participant, with respect to interests held by participants on behalf of other persons.
Payments, transfers,
exchanges and other matters relating to beneficial interests in a global security will be subject to policies and procedures of the depositary.
The depositary policies and procedures may
change from time to time. Neither we nor the trustee will have any responsibility or liability
for the depositary’s or any participant’s records with respect to beneficial interests in a global security.
Exchange of Global Securities for Certificated
Securities
Except as otherwise may
be set forth in the applicable prospectus supplement, the global securities may be exchanged for securities in certificated form only
in the following circumstances:
| · | if the depositary notifies us that it is unwilling or unable to continue as depositary for the global securities, or if the depositary
is no longer registered as a clearing agency under the Exchange Act and we do not appoint a replacement depositary within 90 days; |
| · | an event of default under the applicable indenture has occurred and is continuing; or |
| · | if we determine, subject to the procedures of the depositary, that a series of the securities will no longer be represented by global
securities. |
If any global securities
are exchangeable for certificated securities as described above, we will execute, and the applicable trustee will authenticate upon our
order, certificated securities of like tenor and terms in certificated form in an aggregate principal amount equal to the principal amount
of such global securities. These certificated securities will be delivered to persons specified by the depositary in exchange for the
beneficial interests in the global securities being exchanged.
PLAN OF DISTRIBUTION
We may sell the securities through underwriters,
dealers or agents, or directly to one or more purchasers. The prospectus supplement with respect to the securities being offered will
set forth the specific terms of the offering of those securities, including the name or names of any underwriters, dealers or agents,
the purchase price of those securities and the proceeds to us from the sale, any underwriting discounts, agency fees and other items constituting
underwriters’ or agents’ compensation, any initial public offering price and any discounts or concessions allowed or reallowed
or paid to dealers.
If we use underwriters to sell securities, we will
enter into an underwriting agreement with the underwriters. Those securities will be acquired by the underwriters for their own account
and may be resold from time to time in one or more transactions, at a fixed public offering price, at market prices prevailing at the
time of sale, at prices related to such prevailing market prices or at negotiated prices. The underwriter or underwriters with respect
to a particular underwritten offering of securities will be named in the prospectus supplement relating to that offering and, if an underwriting
syndicate is used, the managing underwriter or underwriters will be set forth on the cover page of the prospectus supplement. Any underwriting
compensation paid by us to the underwriters or agents in connection with an offering of securities, and any discounts, concessions or
commissions allowed by underwriters to dealers, will be set forth in the applicable prospectus supplement to the extent required by applicable
law. Unless otherwise set forth in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject
to specific conditions, and the underwriters will be obligated to purchase all of the offered securities if any are purchased.
If a dealer is used in the sale of any securities,
we will sell those securities to the dealer, as principal. The dealer may then resell the securities to the public at varying prices to
be determined by the dealer at the time of resale. The name of any dealer involved in a particular offering of securities and any
discounts
or concessions allowed or reallowed or paid to the dealer will be set forth in the prospectus supplement relating to that offering.
The securities may be sold directly by us or through
agents designated by us from time to time. We will describe the terms of any direct sales in a prospectus supplement. Any agent, who may
be deemed to be an underwriter as that term is defined in the Securities Act, involved in the offer or sale of any of the securities will
be named, and any commissions payable by us to the agent will be set forth, in the prospectus supplement relating to that offer or sale.
Unless otherwise indicated in the prospectus supplement, any agent will be acting on a reasonable best efforts basis for the period of
its appointment.
In connection with a particular underwritten offering
of securities, and in compliance with applicable law, the underwriters may engage in transactions that stabilize, maintain or otherwise
affect the prices of the classes or series of securities offered, including stabilizing transactions and syndicate covering transactions.
These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than the price that
might otherwise prevail in the open market, and if commenced, may be discontinued at any time. A description of these activities, if any,
will be set forth in the prospectus supplement relating to that offering.
Underwriters, dealers or agents and their associates
may be customers of, engage in transactions with or perform services for us and our affiliates in the ordinary course of business.
We will indicate in a prospectus supplement the
extent to which we anticipate that a secondary market for the securities will be available. Unless we inform you otherwise in a prospectus
supplement, we do not intend to apply for the listing of any securities on a national securities exchange. If the securities are sold
to or through underwriters, the underwriters may make a market in such securities, as permitted by applicable laws and regulations. No
underwriter would be obligated, however, to make a market in the securities, and any market-making could be discontinued at any time at
the sole discretion of the underwriters. Accordingly, we cannot assure you as to the liquidity of, or trading markets for, the securities.
Underwriters, dealers and agents participating
in the distribution of the securities may be deemed to be “underwriters” within the meaning of, and any discounts and commissions
received by them and any profit realized by them on resale of those securities may be deemed to be underwriting discounts and commissions
under, the Securities Act. Subject to some conditions, we may agree to indemnify the several underwriters, dealers or agents and their
controlling persons against specific civil liabilities, including liabilities under the Securities Act, or to contribute to payments that
person may be required to make in respect thereof.
During such time as we may be engaged in a distribution
of the securities covered by this prospectus we are required to comply with Regulation M promulgated under the Exchange Act. With
certain exceptions, Regulation M precludes us, any affiliated purchasers and any broker-dealer or other person who participates in
such distributing from bidding for or purchasing, or attempting to induce any person to bid for or purchase, any security which is the
subject of the distribution until the entire distribution is complete. Regulation M also restricts bids or purchases made in order
to stabilize the price of a security in connection with the distribution of that security. All of the foregoing may affect the marketability
of our securities.
WHERE YOU CAN FIND MORE INFORMATION
This prospectus is part of a registration statement
filed with the SEC. The registration statement contains additional information and exhibits not included in this prospectus and refers
to documents that are filed as exhibits to other SEC filings. We file annual, quarterly and current reports and other information with
the SEC. Our SEC filings are available to the public over the internet at the SEC’s website at http://www.sec.gov. Our SEC filings
can also be accessed through our website at http://www.pacificorp.com. The information found on our website, other than any of our SEC
filings that are incorporated by reference herein, is not part of this prospectus.
INCORPORATION BY REFERENCE
The SEC allows us to “incorporate by reference”
the information we file with it, which means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is considered to be part of this prospectus and later information that we file with the SEC will
automatically update or supersede this information. We incorporate by reference the documents listed below and any future filings made
with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act (but only to the extent the information therein is filed
and not furnished), until all of the securities covered by this prospectus have been sold:
| • | Annual Report on Form 10-K for the year ended December 31,
2023; |
| • | Quarterly Report on Form 10-Q for the quarter ended March 31,
2024; and |
Upon written or oral request, we will deliver a
copy of these filings (other than exhibits to such documents unless such exhibits are specifically incorporated by reference therein),
at no cost to you, by writing or telephoning us at the following address:
PacifiCorp
825 N.E. Multnomah Street,
Suite 1900
Portland, Oregon 97232
Telephone: (888) 221-7070
Attention: Treasury
LEGAL MATTERS
The validity of the securities will be passed upon
for us by Perkins Coie LLP, Portland, Oregon. If the securities are being distributed in an underwritten offering, certain legal matters
will be passed upon for the underwriters by counsel identified in the related prospectus supplement.
EXPERTS
The financial statements of PacifiCorp as of December 31, 2023 and 2022, and for each of the three years in the period ended December 31, 2023, incorporated by reference in this prospectus
by reference to PacifiCorp’s annual report on Form 10-K for the year ended December 31, 2023, have been audited by Deloitte &
Touche LLP, an independent registered public accounting firm, as stated in their report. Such financial statements are incorporated by
reference in reliance upon the report of such firm given their authority as experts in accounting and auditing.
With respect to the unaudited interim financial
information for the periods ended March 31, 2024 and 2023, which is incorporated by reference herein, Deloitte & Touche LLP, an independent
registered public accounting firm, have applied limited procedures in accordance with the standards of the Public Company Accounting Oversight
Board (United States) for a review of such information. However, as stated in their report included in PacifiCorp’s Quarterly Report
on Form 10-Q for the quarter ended March 31, 2024 and incorporated by reference herein, they did not audit, and they do not express an
opinion on that interim financial information. Accordingly, the degree of reliance on their report on such information should be restricted
in light of the limited nature of the review procedures applied. Deloitte & Touche
LLP is not subject to the liability provisions
of Section 11 of the Securities Act for their reports on the unaudited interim financial information because those reports are not “reports”
or a “part” of the Registration Statement prepared or certified by an accountant within the meaning of Sections 7 and 11 of
the Securities Act.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Costs and expenses payable by us in connection
with the issuance and distribution of the securities being registered are set forth as follows:
| Registration fee |
$ |
* |
| Legal fees and expenses |
|
** |
| Accounting fees and expenses |
|
** |
| Trustee fees |
|
** |
| Rating agency fees |
|
** |
| Indenture recording fees |
|
** |
| Printing and delivery of registration statement, prospectus, certificates, etc. |
|
** |
| Miscellaneous expenses |
|
** |
| Total |
|
$ |
* In accordance with Rules 456(b) and 457(r) under
the Securities Act, the registrant is deferring payment of the registration fee for the securities offered by this prospectus.
** To be provided
in an amendment or filing, or exhibit thereto, filed with the SEC, or reflected in the applicable prospectus supplement. These fees are
calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the
State of Oregon and is subject to the Oregon Business Corporation Act (the “OBCA”). The Company’s Third Restated Articles
of Incorporation (“Restated Articles”), and Bylaws, as amended (“Bylaws”), require the Company to indemnify directors
and officers to the fullest extent not prohibited by law. The right to and amount of indemnification ultimately will be subject to determination
by a court that indemnification in the circumstances presented is consistent with public policy considerations and other provisions of
law. It is likely, however, that the Restated Articles would require indemnification at least to the extent that indemnification is authorized
by the OBCA. The effect of the OBCA is summarized as follows:
(a) The OBCA
permits the Company to grant a right of indemnification in respect of any pending, threatened or completed action, suit or proceeding,
other than an action by or in the right of the Company, against reasonable expenses (including attorneys’ fees), judgments, penalties,
fines and amounts paid in settlement actually incurred, provided the person concerned acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Company, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe the conduct was unlawful. Indemnification is not permitted in connection with a proceeding in which a person
is adjudged liable to the Company or the person is adjudged liable on the basis that personal benefit was improperly received unless indemnification
is permitted by a court upon a finding that the person is fairly and reasonably entitled to indemnification in view of all of the relevant
circumstances. The termination of a proceeding by judgment, order, settlement, conviction or plea of nolo contendere or its equivalent
is not, of itself, determinative that the person did not meet the prescribed standard of conduct.
(b) The OBCA
permits the Company to grant a right of indemnification in respect of any proceeding by or in the right of the Company against the reasonable
expenses (including attorneys’ fees) incurred, if the person concerned acted in good faith and in a manner he or she reasonably
believed to be in or not opposed to the best interests of the Company, except that no indemnification may be granted if that person is
adjudged to be liable to the Company unless indemnification is permitted by a court upon finding that the person is fairly and reasonably
entitled to indemnification in view of all of the relevant circumstances.
(c) Under the
OBCA, the Company may not indemnify a person in respect of a proceeding described in (a) or (b) above unless one of the following determines
that indemnification is permissible because the person has met the prescribed standard of conduct:
(1)
the Board of Directors of the Company (the “Board”), by majority vote of a quorum consisting of directors not at the
time parties to the proceeding;
(2)
if a quorum of directors not parties to the proceeding cannot be obtained, by a majority vote of a committee of two or more directors
not at the time parties to the proceeding;
(3)
by special legal counsel selected by the Board or the committee thereof, as described in (1) and (2) above;
(4)
if special legal counsel cannot be selected as described in (3) above, then by special legal counsel selected by majority vote
of the full Board, including directors who are parties to the proceeding; or
(5)
by the shareholders.
Authorization of the indemnification and evaluation as to the reasonableness
of expenses are to be determined as specified in any one of (1) through (5) above, except that if the determination of that indemnification’s
permissibility is made by special legal counsel, then authorization of indemnification and evaluation as to the reasonableness of those
expenses is to be made by those entitled to select special legal counsel. Indemnification can also be ordered by a court if the court
determines that indemnification is fair in view of all of the relevant circumstances. Notwithstanding the foregoing, every person who
has been wholly successful, on the merits or otherwise, in defense of a proceeding described in (a) or (b) above is entitled to be indemnified
as a matter of right against reasonable expenses incurred in connection with the proceeding.
(d) Under the OBCA, the
Company may pay for or reimburse the reasonable expenses incurred in defending a proceeding in advance of the final disposition thereof
if the director or officer receiving the advance furnishes (i) a written affirmation of the director’s or officer’s good faith
belief that he or she has met the prescribed standard of conduct and (ii) a written undertaking to repay the advance if it is ultimately
determined that that person did not meet the standard of conduct.
The rights of indemnification described above are
not exclusive of any other rights of indemnification to which officers or directors may be entitled under any agreement, vote of shareholders,
action of directors or otherwise. Resolutions adopted by the Board require the Company to indemnify directors and officers of the Company
to the fullest extent permitted by law and are intended to create an obligation to indemnify to the fullest extent a court may find to
be consistent with public policy considerations.
In addition, under the form of underwriting agreement
that the Company expects to enter into in connection with any issuance of the securities, in certain circumstances, the underwriters will
agree to indemnify the Company against certain liabilities, including liabilities under the Securities Act.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT INDEX
| Exhibit No. |
|
Description |
| 1.1* |
|
Form of Underwriting Agreement. |
| |
|
|
| 4.1 |
|
Mortgage and Deed of Trust dated as of January 9, 1989, between PacifiCorp and The Bank of New York Mellon Trust Company, N.A., as successor Trustee, incorporated by reference to Exhibit 4.1 to PacifiCorp’s Registration Statement on Form S-3 (No. 333-249044), filed on September 25, 2020 and Exhibit 4-E, Form 8-B, File No. 1-5152, as supplemented and modified by 35 Supplemental Indentures, each incorporated by reference. |
| |
Exhibit
No. |
|
File
Type |
|
Period
or File Date |
|
File Number |
| |
|
|
|
|
|
|
|
| |
(4)(b)(a) |
|
SE |
|
November 2, 1989 |
|
33-31861 |
| |
(4)(a)(a) |
|
8-K |
|
January 9, 1990 |
|
1-5152 |
| |
(4)(a)(a) |
|
8-K |
|
September 11, 1991 |
|
1-5152 |
| |
(4)(a)(a) |
|
8-K |
|
January 7, 1992 |
|
1-5152 |
| |
(4)(a)(a) |
|
10-Q |
|
Quarter ended March 31, 1992 |
|
1-5152 |
| |
(4)(a)(a) |
|
10-Q |
|
Quarter ended September 30, 1992 |
|
1-5152 |
| |
(4)(a)(a) |
|
8-K |
|
April 1, 1993 |
|
1-5152 |
| |
(4)(a)(a) |
|
10-Q |
|
Quarter ended September 30, 1993 |
|
1-5152 |
| |
4(a) |
|
10-Q |
|
Quarter ended June 30, 1994 |
|
1-5152 |
| |
4(b) |
|
10-K |
|
Year ended December 31, 1994 |
|
1-5152 |
| |
4(b) |
|
10-K |
|
Year ended December 31, 1995 |
|
1-5152 |
| |
4(b) |
|
10-K |
|
Year ended December 31, 1996 |
|
1-5152 |
| |
4(b) |
|
10-K |
|
Year ended December 31, 1998 |
|
1-5152 |
| |
99(a) |
|
8-K |
|
November 21, 2001 |
|
1-5152 |
| |
4.1 |
|
10-Q |
|
Quarter ended June 30, 2003 |
|
1-5152 |
| |
99 |
|
8-K |
|
September 9, 2003 |
|
1-5152 |
| |
4 |
|
8-K |
|
August 26, 2004 |
|
1-5152 |
| |
4 |
|
8-K |
|
June 14, 2005 |
|
1-5152 |
| |
4.2 |
|
8-K |
|
August 14, 2006 |
|
1-5152 |
| |
4 |
|
8-K |
|
March 14, 2007 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
October 3, 2007 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
July 17, 2008 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
January 8, 2009 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
May 12, 2011 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
January 6, 2012 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
June 6, 2013 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
March 13, 2014 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
June 19, 2015 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
July 13, 2018 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
March 1, 2019 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
April 8, 2020 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
July 9, 2021 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
December 1, 2022 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
May 17, 2023 |
|
1-5152 |
| |
4.1 |
|
8-K |
|
January 5, 2024 |
|
1-5152 |
| 4.2* |
|
Form of Additional Bond. |
| |
|
|
| 4.3 |
|
Form of Indenture (Senior Debt Securities). |
| |
|
|
| 4.4 |
|
Form of Indenture (Subordinated Debt Securities). |
| |
|
|
| 4.4* |
|
Form of Unsecured Debt Securities. |
| |
|
|
| 5.1 |
|
Opinion of Perkins Coie LLP. |
| |
|
|
| 15.1 |
|
Awareness Letter of Deloitte & Touche LLP. |
| |
|
|
| 23.1 |
|
Consent of Deloitte & Touche LLP. |
| |
|
|
| 23.2 |
|
Consent of Perkins Coie LLP (included in Exhibit 5.1). |
| |
|
|
| 24.1 |
|
Power of Attorney (included on signature page hereto). |
| |
|
|
| 25.1 |
|
Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of The Bank of New York Mellon Trust Company, N.A., as Trustee, under the Mortgage and Deed of Trust, dated as of January 9, 1989, between the Company and The Bank of New York Mellon Trust Company, N.A. |
| |
|
|
| 25.2 |
|
Statement of Eligibility on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. for the form of senior unsecured indenture. |
| |
|
|
| 25.3 |
|
Statement of Eligibility
on Form T-1 under the Trust Indenture Act of 1939 of The Bank of New York Mellon Trust Company, N.A. for the form of subordinated
unsecured indenture. |
| |
|
|
| 107 |
|
Filing Fee Table. |
| * | To be filed, if necessary, as an
exhibit to an amendment hereto or as an exhibit to a document to be incorporated by reference herein. |
| (a) | Not available electronically on the SEC website as it was filed
in paper previous to the electronic system currently in place. |
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of
the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth
in the “Calculation of Filing Fee Tables” or “Calculation of Registration Fee” table, as applicable, in the
effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided,
however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by the registrant pursuant to
section 13 or section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(A)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the
date the filed prospectus was deemed part of and included in the registration statement; and
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information required
by section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the
date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter,
such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement
to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering
thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement
or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the
registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement
that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately
prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution
of the securities:
The undersigned registrant undertakes that in a primary offering
of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell
the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications,
the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to
Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(6)
That, for purposes of determining any liability under the Securities Act, each filing of the registrant’s annual report pursuant
to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(7)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the
SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that
a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the
registrant in the successful defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities
Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3
and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City
of Portland, State of Oregon, on July 25, 2024.
| |
PACIFICORP |
| |
|
| |
By: |
/s/ Nikki L. Kobliha |
| |
|
Nikki L. Kobliha |
| |
|
Director, Senior Vice President, Chief Financial Officer
and Treasurer (principal financial and accounting officer) |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each person
whose signature appears below constitutes and appoints, jointly and severally, Nikki L. Kobliha and Karen J. Kruse, as his or her
true and lawful attorneys-in-fact and agents, for him or her and in his or her name, place and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this registration statement, or any related registration statement that
is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all
exhibits thereto and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents
may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities
Act of 1933, this registration statement has been duly signed by the following persons in the capacities and on the dates indicated.
| Signature |
Title |
Date |
| |
|
|
| /s/ Cindy A. Crane |
Chair of the Board of Directors and Chief |
July 25, 2024 |
| Cindy A. Crane |
Executive Officer (principal executive officer) |
|
| |
|
|
| /s/ Nikki L. Kobliha |
Director, Senior Vice President, Chief Financial Officer and |
July 25, 2024 |
| Nikki L. Kobliha |
Treasurer (principal financial and accounting officer) |
|
| |
|
|
| /s/ Calvin D. Haack |
Director |
July 25, 2024 |
| Calvin D. Haack |
|
|
| |
|
|
| /s/ Natalie L. Hocken |
Director |
July 25, 2024 |
| Natalie L. Hocken |
|
|
Exhibit 4.3
PACIFICORP
AND
, as Trustee
Indenture
Dated as of , 20
Senior Debt Securities
Reconciliation and tie between
the Trust Indenture Act of 1939
and Indenture,
dated as of , 20 *
Trust Indenture
Act Section |
|
Indenture Section |
| Section 310 (a)(1) |
|
6.09 |
| (a)(2) |
|
6.09 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| (a)(5) |
|
6.08, 6.10 |
| (b) |
|
6.08, 6.10 |
| Section 311 (a) |
|
6.13 |
| (b) |
|
6.13 |
| Section 312 (a) |
|
7.01, 7.02(a) |
| (b) |
|
7.02(b) |
| (c) |
|
7.03 |
| Section 313 (a) |
|
7.03 |
| (b) |
|
7.03 |
| (c) |
|
7.03 |
| (d) |
|
7.03 |
| Section 314 (a) |
|
7.04, 10.05 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
1.02 |
| (c)(2) |
|
1.02 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
1.02 |
| (f) |
|
Not Applicable |
| Section 315 (a) |
|
6.01 |
| (b) |
|
6.02 |
| (c) |
|
6.01 |
| (d) |
|
6.01 |
Trust Indenture
Act Section |
|
Indenture Section |
| (e) |
|
5.14 |
| Section 316 (a) |
|
1.01 |
| (a)(1)(A) |
|
5.12 |
| (a)(1)(B) |
|
5.13 |
| (a)(2) |
|
Not Applicable |
| (b) |
|
5.08 |
| Section 317 (a)(1) |
|
5.03 |
| (a)(2) |
|
5.04 |
| (b) |
|
10.03 |
| Section 318 (a) |
|
1.07 |
| (c) |
|
1.07 |
| * |
This table shall not, for any purpose, be deemed to be a part of the Indenture. |
TABLE OF CONTENTS
| |
| |
Page |
| ARTICLE I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
5 |
| Section 1.01 |
Definitions |
5 |
| Section 1.02 |
Compliance Certificates and Opinions |
9 |
| Section 1.03 |
Form of Documents Delivered to Trustee |
10 |
| Section 1.04 |
Acts of Holders; Record Dates |
10 |
| Section 1.05 |
Notices, Etc., to Trustee and Company |
11 |
| Section 1.06 |
Notice to Holders; Waiver |
12 |
| Section 1.07 |
Conflict with Trust Indenture Act |
12 |
| Section 1.08 |
Effect of Headings and Table of Contents |
12 |
| Section 1.09 |
Successors and Assigns |
13 |
| Section 1.10 |
Separability Clause |
13 |
| Section 1.11 |
Benefits of Indenture |
13 |
| Section 1.12 |
Governing Law |
13 |
| Section 1.13 |
Legal Holidays |
13 |
| Section 1.14 |
Waiver of Jury Trial |
13 |
| Section 1.15 |
Force Majeure |
13 |
| Section 1.16 |
Submission to Jurisdiction |
13 |
| Section 1.17 |
FATCA |
14 |
| Section 1.18 |
Counterparts |
14 |
| |
| ARTICLE II. SECURITY FORMS |
14 |
| Section 2.01 |
Forms of Securities |
14 |
| Section 2.02 |
Form of Trustee’s Certificate of Authentication |
15 |
| Section 2.03 |
Securities in Global Form |
15 |
| |
| ARTICLE III. THE SECURITIES |
15 |
| Section 3.01 |
Amount Unlimited; Issuable in Series |
15 |
| Section 3.02 |
Denominations |
17 |
| Section 3.03 |
Execution, Authentication, Delivery and Dating |
17 |
| Section 3.04 |
Temporary Securities |
18 |
| Section 3.05 |
Registration, Registration of Transfer and Exchange and Book-Entry Securities |
18 |
| Section 3.06 |
Mutilated, Destroyed, Lost and Stolen Securities |
20 |
| Section 3.07 |
Payment of Interest; Interest Rights Preserved |
21 |
| Section 3.08 |
Persons Deemed Owners |
21 |
| Section 3.09 |
Cancellation |
22 |
| Section 3.10 |
Computation of Interest |
22 |
| Section 3.11 |
CUSIP Numbers |
22 |
| ARTICLE IV. SATISFACTION AND DISCHARGE |
22 |
| Section 4.01 |
Satisfaction and Discharge of Indenture |
22 |
| Section 4.02 |
Application of Trust Money |
23 |
| |
| ARTICLE V. EVENTS OF DEFAULT; REMEDIES |
23 |
| Section 5.01 |
Events of Default |
23 |
| Section 5.02 |
Acceleration of Maturity; Rescission and Annulment |
25 |
| Section 5.03 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
26 |
| Section 5.04 |
Trustee May File Proofs of Claim |
26 |
| Section 5.05 |
Trustee May Enforce Claims Without Possession of Securities |
27 |
| Section 5.06 |
Application of Money Collected |
27 |
| Section 5.07 |
Limitation on Suits |
27 |
| Section 5.08 |
Unconditional Right of Holders to Receive Principal, Premium and Interest |
28 |
| Section 5.09 |
Restoration of Rights and Remedies |
28 |
| Section 5.10 |
Rights and Remedies Cumulative |
28 |
| Section 5.11 |
Delay or Omission Not Waiver |
28 |
| Section 5.12 |
Control by Holders |
28 |
| Section 5.13 |
Waiver of Defaults |
29 |
| Section 5.14 |
Undertaking for Costs |
29 |
| Section 5.15 |
Waiver of Stay or Extension Laws |
29 |
| |
|
| ARTICLE VI. THE TRUSTEE |
30 |
| Section 6.01 |
Certain Duties and Responsibilities |
30 |
| Section 6.02 |
Notice of Defaults |
30 |
| Section 6.03 |
Certain Rights of Trustee |
31 |
| Section 6.04 |
Not Responsible for Recitals or Issuance of Securities |
32 |
| Section 6.05 |
May Hold Securities |
32 |
| Section 6.06 |
Money Held in Trust |
32 |
| Section 6.07 |
Compensation and Reimbursement |
32 |
| Section 6.08 |
Disqualification; Conflicting Interests |
33 |
| Section 6.09 |
Corporate Trustee Required; Eligibility |
33 |
| Section 6.10 |
Resignation and Removal; Appointment of Successor |
33 |
| Section 6.11 |
Acceptance of Appointment by Successor |
34 |
| Section 6.12 |
Merger, Conversion, Consolidation or Succession to Business |
35 |
| Section 6.13 |
Preferential Collection of Claims Against Company |
35 |
| Section 6.14 |
Appointment of Authenticating Agent |
35 |
| |
| ARTICLE VII. HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
36 |
| Section 7.01 |
Company to Furnish Trustee Names and Addresses of Holders |
36 |
| Section 7.02 |
Preservation of Information; Communications to Holders |
37 |
| Section 7.03 |
Reports by Trustee |
37 |
| Section 7.04 |
Reports by Company |
37 |
| Section 7.05 |
Holders’ Meetings |
37 |
| |
|
| ARTICLE VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
39 |
| Section 8.01 |
Company May Consolidate, Etc., Only on Certain Terms |
39 |
| Section 8.02 |
Successor Substituted |
39 |
| |
| ARTICLE IX. SUPPLEMENTAL INDENTURES |
40 |
| Section 9.01 |
Supplemental Indentures Without Consent of Holders |
40 |
| Section 9.02 |
Supplemental Indentures With Consent of Holders |
40 |
| Section 9.03 |
Execution of Supplemental Indentures |
41 |
| Section 9.04 |
Effect of Supplemental Indentures |
41 |
| Section 9.05 |
Conformity with Trust Indenture Act |
41 |
| Section 9.06 |
Reference in Securities to Supplemental Indentures |
41 |
| Section 9.07 |
Notice of Supplemental Indenture |
42 |
| |
|
| ARTICLE X. COVENANTS |
42 |
| Section 10.01 |
Payment of Principal, Premium and Interest |
42 |
| Section 10.02 |
Maintenance of Office or Agency |
42 |
| Section 10.03 |
Money for Securities Payments to Be Held in Trust |
42 |
| Section 10.04 |
Corporate Existence |
43 |
| Section 10.05 |
Statement as to Default |
43 |
| Section 10.06 |
Waiver of Certain Covenants |
43 |
| |
|
| ARTICLE XI. REDEMPTION OF SECURITIES |
44 |
| Section 11.01 |
Applicability of Article |
44 |
| Section 11.02 |
Election to Redeem; Notice to Trustee |
44 |
| Section 11.03 |
Selection by Trustee of Securities to Be Redeemed |
44 |
| Section 11.04 |
Notice of Redemption |
44 |
| Section 11.05 |
Deposit of Redemption Price |
45 |
| Section 11.06 |
Securities Payable on Redemption Date |
45 |
| Section 11.07 |
Securities Redeemed in Part |
45 |
| |
|
| ARTICLE XII. SINKING FUNDS |
46 |
| Section 12.01 |
Applicability of Article |
46 |
| Section 12.02 |
Satisfaction of Mandatory Sinking Fund Payments with Securities |
46 |
| Section 12.03 |
Redemption of Securities for Mandatory Sinking Fund |
46 |
| |
|
| ARTICLE XIII. REPAYMENT OF SECURITIES AT OPTION OF HOLDERS |
46 |
| Section 13.01 |
Applicability of Article |
46 |
| Section 13.02 |
Notice of Repayment Date |
46 |
| Section 13.03 |
Deposit of Repayment Price |
47 |
| Section 13.04 |
Securities Payable on Repayment Date |
47 |
| Section 13.05 |
Securities Repaid in Part |
47 |
| |
|
| ARTICLE XIV. DEFEASANCE AND COVENANT DEFEASANCE |
48 |
| Section 14.01 |
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance |
48 |
| Section 14.02 |
Defeasance and Discharge |
48 |
| Section 14.03 |
Covenant Defeasance |
48 |
| Section 14.04 |
Conditions to Defeasance or Covenant Defeasance |
48 |
| Section 14.05 |
Deposited Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
50 |
| Section 14.06 |
Reinstatement |
50 |
| |
| ARTICLE XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
50 |
| Section 15.01 |
Immunity of Incorporators, Stockholders, Officers and Directors |
50 |
INDENTURE, dated as of , 20 , between PACIFICORP,
a corporation duly organized and existing under the laws of the State of Oregon (herein called the “Company”), having
its principal office at 825 N.E. Multnomah Street, Suite 2000, Portland, Oregon 97232, and , a national banking association duly organized
and existing under the laws of the United States, as Trustee (herein called the “Trustee”), having its Corporate Trust
Office at .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its unsecured unsubordinated debentures, notes or other evidences
of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with GAAP;
(4) the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
Certain terms, used principally in Article VI,
are defined in that Article.
“Act,” when used with respect
to any Holder, has the meaning specified in Section 1.04.
“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 specified Person, means the
power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means
any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more
series.
“Authorized Newspaper” means
a newspaper of general circulation in the relevant area, printed in the English language and customarily published on each Business Day
therein.
“Board of Directors” means either
the board of directors of the Company or any duly authorized committee of that board or any director or directors and/or officer or officers
of the Company to whom that board or committee shall have duly delegated its authority.
“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,” when used with
respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order to close.
“Capital Stock,” as applied
to the stock of any corporation, means the capital stock of every class whether now or hereafter authorized, regardless of whether such
capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended or, if at any
time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
“Company” means the Person named
as the “Company” in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means the designated corporate
trust office of the Trustee at which, at any particular time, its corporate trust business shall be administered, which office at the
date hereof is located at .
“Corporation” includes corporations,
associations, companies and business trusts.
“Debt” means, with respect to
any Person, (a) any liability of such Person (i) for borrowed money or (ii) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding trade payables), or (iii) for the payment of money relating to a lease, whether or
not such lease is required to be classified as a capitalized lease obligation in accordance with GAAP; (b) any liability of others described
in the preceding clause (a) that such Person has guaranteed, that is recourse to such Person or that is otherwise such Person’s
legal liability; and (c) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above.
“Defaulted Interest” has the
meaning specified in Section 3.07.
“Depositary” means, with respect
to the Securities of any series issuable or issued in the form of a Global Security, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in either case be designated by the Company pursuant to Section
3.01 or 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one
such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect
to the Securities of that series.
“Electronic Means” shall mean
the following communications methods: e-mail or secure electronic transmission containing applicable authorization codes, passwords and/or
authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with
its services hereunder.
“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder.
“Event of Default” has the meaning
specified in Section 5.01.
“GAAP” means, as of any date
of computation, generally accepted accounting principles in the United States, consistently applied, that are in effect on the date of
such computation.
“Global Security or Securities”
means one or more fully registered Securities in global form evidencing all or a part of a series of Securities issued to the Depositary
for such series or its nominee or registered in the name of the Depositary or its nominee.
“Holder” means a Person in whose
name a Security is registered in the Security Register.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated
by Section 3.01.
“interest,” when used with respect
to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when
used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity,” when used with respect
to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or by repayment or otherwise.
“Notice of Default” has the
meaning specified in Section 5.01(4).
“Officers’ Certificate”
means a certificate signed by at least two officers of the Company, one signature being that of the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President, and the other signature being that of the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a
written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.
“Original Issue Discount Security”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02.
“Outstanding,” when used with
respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant
to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
(iv) Securities, except to the extent provided
in Sections 14.02 and 14.03, with respect to which the Company has effected a defeasance and/or covenant defeasance as provided in Article
XIV, subject to certain provisions of this Indenture that continue after defeasance;
provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date
of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, and (b) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person
authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“Person” means any individual,
corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified as contemplated by Section 3.01.
“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date,” when used
with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used
with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the
interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated
by Section 3.01.
“Repayment Date” means, when
used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Repayment Price” means, when
used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid by or pursuant to this
Indenture.
“Responsible Officer,” when
used with respect to the Trustee, means any officer of the Trustee customarily performing corporate trust functions who shall have direct
responsibility for the administration of this Indenture.
“Securities” has the meaning
stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 3.05.
“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,” when used
with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as
the fixed date on which the principal or such installment of principal of (and premium, if any) or interest on such Security is due and
payable.
“Subsidiary” means a corporation
or limited liability company more than 50% of the outstanding voting Capital Stock or voting membership interests of which is or are owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For
the purposes of this definition, (1) “voting Capital Stock” means stock which ordinarily has voting power for the election
of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency, and
(2) “voting membership interests” means membership interests which ordinarily have voting power for the election of directors
(or the equivalent thereof), whether at all times or only so long as no senior class of membership interests have such voting power by
reason of any contingency.
“Trustee” means the Person named
as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” means
the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“United States” means the United
States of America.
“U.S. Government Obligations”
has the meaning specified in Section 14.04.
“Vice President,” when used
with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after
the title “vice president.”
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than the certificate provided for in Section 10.05) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, such individual has made such examination or investigation as is necessary to enable the individual to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect
to the matters upon which such Holder’s certificate or opinion are based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.04 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing
acknowledged to such witness or certifying individual the execution thereof. Where such execution is by a signer acting in a capacity
other than such Holder’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such Holder’s
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted
by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders of Securities of any series entitled
to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized
or
permitted to be given or taken by Holders of Securities of such series. If not set by the Company prior to the first solicitation of
a Holder of Securities of such series made by any Person in respect of any such action, or in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of
Holders required to be provided pursuant to Section 7.01) prior to such first solicitation or vote, as the case may be. With regard to
any record date for action to be taken by the Holders of one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of such
principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different
part.
(g) Without limiting the generality of the foregoing,
unless otherwise specified pursuant to Section 3.01 or pursuant to one or more indentures supplemental hereto, a Holder, including a Depositary
that is the Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and
a Depositary that is the Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary’s standing instructions and customary practices.
(h) The Trustee shall fix a record date for the
purpose of determining the Persons who are beneficial owners of interests in any Global Security held by a Depositary entitled under the
procedures of such Depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such record date.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: , or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture, Attention:
Secretary, or at any other address previously furnished in writing to the Trustee by the Company.
The Trustee shall have the right to accept and
act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered
using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with
the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers,
which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company
elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions,
the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee
cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions
that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by
such
Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the
Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable
user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions
notwithstanding whether such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to
assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed
of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more
secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to
be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light
of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized
use of the security procedures.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including any notice
of redemption or repurchase) to a holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given
if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with accepted practices at the Depositary.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice to a Holder which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities
in regular mail service or by reason of any other cause, it shall be impracticable to give notice of any event to Holders by mail when
such notice is required to be given pursuant to any provision of this Indenture, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with the duties imposed by any of Section 3.10 through Section 3.17, inclusive, of the Trust Indenture Act through the operation of Section
3.18(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or shall
be deemed to be so excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent and the Holders,
any benefit or any legal or equitable right, remedy or claim under this Indenture; provided that this Section 1.11 shall not limit the
rights of any Holder of a Global Security to give any notice or take any action, or appoint any agents, with regard to any part or different
parts of the principal amount of such Global Security pursuant to Section 1.04.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed
by and construed in accordance with the laws of the State of New York and for all purposes shall be governed by and construed in accordance
with the laws of said state without regard to the conflicts of laws and rules of said state.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date or at the Stated Maturity, provided that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date or Stated Maturity,
as the case may be.
Section 1.14 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.15 Force Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.16 Submission to Jurisdiction.
The Company hereby irrevocably submits to the jurisdiction
of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of
Manhattan in the City
of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Securities,
and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
Section 1.17 FATCA.
The Company agrees (i) to provide the Trustee with
such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the Indenture
are subject to the withholding requirements described in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”)
or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations
thereof (“Applicable Law”), and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments
under the Indenture to the extent necessary to comply with Applicable Law, for which the Trustee shall not have any liability.
Section 1.18 Counterparts.
This Indenture may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same instrument. This Indenture may be executed in
any number of counterparts by manual, facsimile or electronic signature, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same instrument, and signature pages may be delivered by, electronic
mail (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transaction Act, the New
York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable
law) or other transmission method.
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities.
The Securities of each series shall be in such
form or forms (including global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may
be required to comply with any law or with any rules made pursuant thereto or the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities. If the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The Trustee’s certificates of authentication
shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed
or engraved or may be produced in any other manner permitted by the rules of any securities exchange upon which the Securities may be
listed and (with respect to Global Securities of any Series) the rules of the Depositary, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Trustee’s Certificate of Authentication.
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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Authorized Officer |
Section 2.03 Securities in Global Form.
If any Security of a series is issuable in global
form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon
and also may provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions
by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section
1.02.
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
All Securities of each series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or distinction on account of the actual time of the authentication and delivery
or Maturity of the Securities of such series. There shall be established in or pursuant to a Board Resolution, and, to the extent not
set forth therein, set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series including
CUSIP Numbers (which shall distinguish the Securities of the series from all other series of Securities);
(2) the price or prices (expressed as a percentage
of the aggregate principal amount thereof) at which the Securities will be issued;
(3) any limit upon the aggregate principal amount
of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 3.04,
Section 3.05, Section 3.06, Section 9.06, Section 11.06, Section 13.05 or Section 14.03);
(4) the date or dates on which the principal and
premium, if any, of the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable),
or the method of determination thereof, at which the Securities of the series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date and the right of the Company to defer or extend an Interest Payment Date or, if the principal amount
payable at the Stated Maturity of any of the Securities will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof
which will be due and payable upon any Maturity other than the
Stated Maturity or which will be deemed to be Outstanding as of any such
date (or, in any such case, the manner in which such deemed principal amount is to be determined);
(6) if other than the Corporate Trust Office, the
place or places where the principal of (and premium, if any) and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any mandatory sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02;
(11) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities, the terms and conditions upon which such Global Security may be exchanged
in whole or in part for other individual securities and the Depositary for such Global Security or Securities;
(12) any addition to or change in the Events of
Default which applies to any Securities of the series;
(13) any addition to or change in the covenants
set forth in Article X which applies to Securities of the series;
(14) the nature and terms of the security for any
secured Securities;
(15) the form and terms of any guarantee of the
Securities;
(16) the application, if any, of Section 14.02
or Section 14.03 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions
of Article XIV;
(17) the listing of the Securities on any securities
exchange or the inclusion in any other market or quotation or trading system;
(18) any Trustee, Authenticating Agent, Paying
Agent, issuing or transfer agent or Securities Registrar or any other Person appointed to act in connection with such Securities for or
on behalf of the Holders thereof or the Company; and
(19) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such
Officers’ Certificate, to the extent applicable, or in any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for
issuance of additional Securities of such series.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Board Resolution or the Officers’
Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable
in registered form with or without coupons in such denominations as shall be specified as contemplated by Section 3.01. In the absence
of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities bearing the manual, facsimile or electronic
signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication,
and the Trustee shall authenticate and deliver such Securities upon Company Order. If all the Securities of any one series are not to
be originally issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth
procedures (acceptable to the Trustee) for the issuance and authentication of such Securities.
If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.01 and Section 3.01, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions
of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01
and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Board Resolution or Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion
of Counsel otherwise required pursuant to this Section 3.03 at or prior to the time of authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued
and such documents reasonably contemplate the issuance of all Securities of such series.
Unless otherwise provided in the form of Security
for any series, each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual, facsimile or electronic signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section
3.01 that the Securities of a series are to be issued in the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of
the Securities of such series having the same terms issued and not yet canceled, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and
until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as
a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Every such temporary
Security shall be executed by the Company and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially
the same manner, and with the same effect, as the definitive Security in lieu of which it is issued.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series
of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
and Book-Entry Securities.
The Company shall cause to be kept at one of its
offices or agencies maintained pursuant to Section 10.02 a register (the register maintained in such office being herein sometimes referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of exchanges and transfers of Securities. The Person responsible for the maintenance of the Security Register
is referred to herein as the “Security Registrar.” The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transfers of Securities as herein provided. The exchange of and the transfer of Securities also
may be registered at the office of the Trustee.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any
series (except Global Securities) may be exchanged for other Securities of the same series (except Global Securities) of any authorized
denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s
attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 3.04, Section 9.06, Section 11.06, Section 13.05 or Section 14.03 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.02 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section
3.05, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing
all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities
of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of a series shall no longer be registered or in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Securities
of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall authenticate and deliver Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by a Global
Security or Securities. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, shall authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series, in exchange for such Global Security or Securities.
If (1) an Event of Default shall occur and be continuing
and (2) beneficial owners of interests representing a majority in aggregate principal amount of the Securities of a series represented
by a Global Security or Securities shall advise the Trustee through the Depositary for such Global Security or Securities in writing that
the maintenance of a Depositary for such series is no longer in such beneficial owners’ best interests, the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive
Securities of such series, shall authenticate
and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the such Global Security or Securities, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section
3.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series
of Securities in exchange in whole or in part for Securities of such series in definitive registered form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service
charge,
| (i) | to the Person specified by such
Depositary a new Security or Securities of the same series, of any authorized denomination as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and |
| (ii) | to such Depositary a new Global
Security in a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate
principal amount of Securities authenticated and delivered pursuant to Clause (i) above. |
Upon the exchange of a Global Security for Securities
in definitive registered form, in authorized denominations, such Global Security shall be canceled by the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this Section 3.05 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. The Trustee shall, at Company expense, deliver such Securities to or as directed
by the Persons in whose names such Securities are so registered.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, together with such other security and/or indemnity as may be reasonably required by the Trustee to save it harmless, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security and/or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security, subject to satisfaction of the foregoing conditions. Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided
for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest. The Company and the Trustee understand that interest on any Global
Security will be disbursed or credited by the Depositary to the Persons having ownership thereof pursuant to a book entry or other system
maintained by the Depositary.
Any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at such Holder’s
address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
None of the Company, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 3.09 Cancellation.
Unless otherwise specified pursuant to Section
3.01(6) for Securities of any series all Securities surrendered for payment, redemption, registration of transfer or exchange or for credit
against any mandatory sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and
shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee, except that if a Global Security is so surrendered, the Company shall execute and the Trustee shall authenticate
and deliver to the Depositary for such Global Security, without service charge, a new Global Security or Securities in a denomination
equal to and in exchange for the portion of the Global Security so surrendered not to be paid, redeemed, repaid or registered for transfer
or exchange or for credit. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance
with its customary procedures and a certificate of disposition shall be delivered to the Company upon its request therefor, unless, by
a Company Order, the Company shall direct the canceled Securities be returned to it.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by
Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease
to be of further effect with respect to the Securities of a particular series, and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture as to such Securities, when:
(1) either:
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year, under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company;
and the Company, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities (x)
money in an amount, (y) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (z) a combination
thereof, sufficient, without reinvestment of interest earned thereon, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, the entire indebtedness on such Securities not theretofore delivered to
the Trustee for cancellation, for principal (and premium, if any) and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; and
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture with respect to the Securities of a particular series, the obligations of the Company to the Trustee under Section 6.07,
the obligations, if any, of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03, in each case with respect to such Securities, shall survive such satisfaction and discharge.
Notwithstanding the cessation, termination and
discharge of all obligations, covenants and agreements of the Company under this Indenture with respect to any series of Securities, the
obligations of the Company to the Trustee under Section 6.07 and the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03 shall survive with respect to such series of Securities.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any)
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
EVENTS OF DEFAULT; REMEDIES
Section 5.01 Events of Default.
Unless otherwise provided in a supplemental indenture
hereto, “Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon
any Security of that series when it becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of
(and premium, if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any mandatory sinking
fund payment, when and as due by the terms of the Securities of that series, and continuance of such default for a period of 30 days;
or
(4) default in the performance of any covenant
or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section 5.01 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series
of Securities other than that series), and continuance of such default for a period of 90 days (unless the Company during such period
shall have performed such covenant or warranty, or if such covenant or warranty cannot reasonably have been performed during such period,
then the Company shall have commenced and be diligently pursuing such performance) after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(5) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the premises in an involuntary case under the federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
or
(6) the commencement by the Company of a voluntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency
or other similar law, or the consent by it to the entry of an order for relief in an involuntary case under any such law or to the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit of its creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action.
Upon receipt by the Trustee of any proposed Notice
of Default from any Holder with respect to Securities of a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such series entitled to join in such proposed Notice of Default,
which record date shall be at the close of business on the day the Trustee receives such proposed Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that unless Holders of at least a majority in principal amount of
the Outstanding Securities of such series, or their proxies, shall have joined in such proposed Notice of Default prior to the day which
is 90 days after such record date, such proposed Notice of Default shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving (i) after expiration of
such 90-day period, a new proposed Notice of Default identical to a proposed Notice of Default which has been canceled pursuant to the
proviso to the preceding sentence, or (ii) during any such 90-day period, an additional proposed Notice of Default with respect to any
new or different fact or circumstance permitting the giving of a proposed Notice of Default with respect to Securities of such series,
in either of which events a new record date shall be established pursuant to the provisions of this Section 5.01. Any such proposed Notice
of Default shall be considered a Notice of Default hereunder at such time, if any, that Holders of at least a majority in principal amount
of the Outstanding Securities shall have joined in such proposed Notice of Default by giving timely notice to the Trustee hereunder.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any series (other than an Event of Default specified in Section 5.01(5) or Section 5.01(6)) at the time Outstanding occurs and is continuing,
then in every such case, the Trustee or the Holders of not less than a majority in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and payable. Upon payment of said amounts, all obligations of
the Company in respect of payment of principal of the Securities of such series shall terminate. Notwithstanding the foregoing, if an
Event of Default specified in Section 5.01(5) or Section 5.01(6) hereof occurs with respect to the Company, all Outstanding Securities
shall become immediately due and payable without further action or notice.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Event of Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been
rescinded and annulled if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay:
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, with respect to Securities of a series all or part of which is represented
by a Global Security, a record date shall be established for determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that unless such declaration of acceleration, or rescission and annulment, as the case
may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day which is 90 days
after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically
and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving (i) after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission
and annulment, as the case may be, that is identical to a written notice which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional written notice of
declaration of acceleration with respect to Securities
of such series, or an additional written notice of rescission and annulment of any declaration of acceleration with respect to any other
Event of Default with respect to Securities of such series, in either of which events a new record date shall be established pursuant
to the provisions of this Section 5.02.
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest
upon any Security when it becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at its Maturity, or
(3) default is made in the making or satisfaction
of any mandatory sinking fund payment when it becomes due pursuant to the terms of the Securities of any series and such default continues
for a period of 30 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal (and premium, if any)
and on any overdue interest, at the rate or rates prescribed therefor in such Securities and, in addition thereto, such further amount
as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may, but shall not be obligated to, institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to file and prove a claim
for the whole amount of principal, premium and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article with respect to the Securities of any series shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities
of any series and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
in each of its capacities under the Indenture under Section 6.07;
SECOND: To the payment of the amounts then due
and unpaid for principal of (and premium, if any) and interest on the Securities of such series in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or as
a court of competent jurisdiction may direct.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee security and/or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of
such Holders, or of the Holders of Outstanding Securities of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption or repayment at the option of the Holder, on the Redemption Date or the Repayment Date, as the case may be) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 5.12 Control by Holders.
The Holders of at least a majority in principal
amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, expose the Trustee to personal liability or be unduly prejudicial to Holders not joining therein,
and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in such direction, which record date shall be determined
in accordance with
Section 1.04(e). The Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders after such record date; provided, that unless Holders of
at least a majority in principal amount of the outstanding Securities of such series, or their proxies, shall have been joined in such
direction prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving (i)
after expiration of such 90-day period, a new direction identical to a direction which has been canceled pursuant to the provisions of
the preceding sentence or (ii) during any such 90-day period, a new direction contrary to or different from such direction, in either
of which events a new record date shall be established pursuant to the provisions of this Section 5.12.
Section 5.13 Waiver of Defaults.
By Act delivered to the Company and the Trustee,
the Holders of not less than a majority in principal amount of the Outstanding Securities of any affected series may on behalf of the
Holders of all the Securities of such series waive any existing Event of Default hereunder with respect to such series and its consequences
(including an acceleration and its consequences, including any related payment default that resulted from such acceleration), except an
Event of Default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any mandatory sinking fund installment with respect to the Securities
of such series, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected
thereby.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Persons entitled to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to waive any default hereunder,
whether or not such Holders remain Holders after such record date; provided, that unless such majority in principal amount shall have
been obtained prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party
litigant, including reasonable attorneys’ fees and expenses, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the Trustee, by any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, or by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the Stated Maturity expressed in such Security (or, in the case of redemption
or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be).
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision of this Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate
the accuracy of any mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise, as a prudent individual would exercise or use under the circumstances in the conduct of such individual’s
own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal, premium or
interest on any Security of such series or in the payment of any mandatory sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee
of the board of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities of such series; and
provided, further, that in the case of any default of the character
specified in Section 5.01(4) with respect to the Securities of such series no such notice to Holders shall be given until at least 60
days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or after
notice or lapse of time or both would become, an Event of Default.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security and/or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except failure by the Company to pay principal of (or premium, if any) or interest
on any series of Securities so long as the Trustee is also acting as Paying Agent for such series of Securities) unless the Trustee shall
be specifically notified in writing of such default by the Company or by the Holders of at least a 10% in aggregate principal amount of
all Outstanding Securities, and all such notices or other instruments required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered at the principal Corporate Trust Office of the Trustee, and in the absence of such notice the Trustee
may conclusively assume there is no default except as aforesaid;
(i) the Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(j) in no event shall the Trustee be responsible
or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss
of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of
action; and
(k) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed by the Trustee to act hereunder
pursuant to the terms of this Indenture.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof. The Trustee shall not be deemed to have knowledge of the identity of any Subsidiary unless either
(A) a Responsible Officer of the Trustee shall have actual knowledge thereof or (B) the Trustee shall have received written notice thereof
from the Company or any Holder.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for the Trustee’s services rendered hereunder (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustee’s own negligence or willful misconduct; and
(3)
to indemnify the Trustee for, and to hold it harmless against, in each case to the extent permitted by law, any charge, loss, claim, damage,
liability or expense incurred without negligence or willful misconduct on the Trustee’s part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder, including the Trustee’s costs and expenses of defending itself
against any claim or liability in connection with the exercise or performance of any of the Trustee’s powers or duties hereunder
including the costs and expenses of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person)
or liability in connection with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing
the provisions of this Section, except to the extent that such charge loss, damage, claim, liability or expense is due to its own negligence
or willful misconduct.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
The benefits of this Section shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
Section 6.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 3.10 of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any particular series of Securities except as may be otherwise
provided by the terms of the Securities of that series.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may at the expense of the Company petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 60 days after the removal of Trustee, the removed Trustee may at the expense of the Company
petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to any or all Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of themselves and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to any or all Securities and the appointment
of a successor Trustee or Trustees with respect to such series.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one
or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of that or those series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice of appointment
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective
to the extent
provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of the Trustee.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of Section 3.11 of the Trust
Indenture Act regarding the collection of such claims against the Company (or any such other obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 3.11 to the extent required thereby.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities (which may be an Affiliate of the Company) which shall be authorized to act
on behalf of the Trustee to authenticate Securities issued upon registration of transfer or partial redemption or repayment thereof or
pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation
organized and doing business and in good standing under the laws of the United States, any State or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and surplus of no less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any time by giving written notice thereof to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent for such
series by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee of such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
Except with respect to an Authenticating Agent
appointed at the request of the Company, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, pursuant to the provisions
of Section 6.07.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series described
therein referred to in the within-mentioned Indenture.
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as Trustee |
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As
Authenticating Agent |
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By: |
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Authorized
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ARTICLE VII.
HOLDERS’ LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the
Company will furnish or cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each
Regular Record Date relating to that series (or, if there is no Regular Record Date relating to that series, on June 30 and December 31),
a list, in such form as such Trustee may reasonably require, of the names and addresses of the Holders of that series as of such date,
and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee is Security Registrar with
respect to Securities of a particular series no such list shall be required with respect to the Securities of such series.
Section 7.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided
in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of the disclosure of information as to the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
Section 7.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing
with the year , the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act if and to the extent and in the manner provided pursuant thereto.
(b) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04 Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act in the manner provided pursuant to the Trust Indenture Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
shall be filed with the Trustee within 15 days after the same is filed with the Commission. Delivery of such reports to the Trustee is
for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice or
knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 7.05 Holders’ Meetings.
(a) A meeting of Holders of any or all series may
be called at any time and from time to time pursuant to the provisions of this Section 7.05 for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the Trustee for such series, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture
or supplemental indentures hereto pursuant to the provisions of Section 9.02; and
(4) to take any other action authorized to be taken
by or on behalf of the Holders of any specified aggregate principal amount of the Outstanding Securities of any one or more or all series,
as the case may be, under any other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time
call a meeting of Holders of such series to take any action specified in paragraph (a) of this Section 7.05, to be held at such time or
times and at such place or places as the Trustee for such series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent provided in Section 1.05. Such notice shall be given not less than 20 days nor
more than 90 days prior to the date fixed for the meeting.
(c) In case at any time the Company, or the Holders
of at least 10% in aggregate principal amount of the Outstanding Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all such series by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within 20 days
after the receipt of such request, then the Company or such Holders may determine the time or times and the place or places for such meetings
and may call such meetings to take any action authorized by giving notice thereof as provided in the preceding paragraph.
(d) To be entitled to vote at any meeting of Holders
a Person shall be (a) a Holder of a Security of the series with respect to which such meeting is being held or (b) a Person appointed
by an instrument in writing as agent or proxy by such Holder. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee for
the series with respect to which such meeting is being held and its counsel and any representatives of the Company and its counsel.
(e) Notwithstanding any other provisions of this
Indenture, the Trustee for any series may make such reasonable regulations as it may deem advisable for any meeting of Holders of such
series, in regard to proof of the holding of Securities of such series and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of such series as
provided in paragraph (c) of this Section 7.05, in which case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of “Outstanding,”
at any meeting each Holder of a Debt Security of the series with respect to which such meeting is being held or proxy therefor shall be
entitled to one vote for each $1,000 principal amount (or such other amount as shall be specified as contemplated by Section 3.01) of
Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Outstanding Securities of such series held by such chairman or instruments in writing
duly designating the chairman as the person to vote on behalf of Holders of Securities of such series. Any meeting of Holders with respect
to which a meeting was duly called pursuant to the provisions of paragraph (b) or (c) of this Section 7.05 may be adjourned from time
to time by a majority of such Holders present and the meeting may be held as so adjourned without further notice.
(f) The vote upon any resolution submitted to any
meeting of Holders with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original
reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in paragraph (b) of this Section 7.05. The record shall show the serial numbers of the Securities voting in favor
of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
(g) Nothing contained in this Section 7.05 shall
be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or
to any Holder under any of the provisions of this Indenture or of the Securities of any series.
ARTICLE VIII.
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge
with or into any other Person or convey, transfer or lease all or substantially all of its property or assets to any Person unless:
(1) in case the Company shall consolidate with
or merge into another Person or convey, transfer or lease all or substantially all of its property or assets to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company shall be either the Company or a corporation or limited liability company, shall be organized
and validly existing under the laws of the United States, any State thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto executed and delivered to the Trustee, all obligations hereunder, including the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) after giving effect to such transaction, no
Event of Default shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein relating to such consolidation,
conveyance or merger have been satisfied and that after giving effect to such transaction, no Event of Default shall have occurred and
be continuing.
Notwithstanding the foregoing, any Subsidiary of
the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Company.
Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or
merger of the Company into, any other Person or conveyance, transfer or lease of all or substantially all of the property or assets of
the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or
to which conveyance, transfer or lease of all or substantially all of its property or assets is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities. In the case of a lease, the predecessor Person shall not be released from its obligations
to pay the principal of, premium, if any, and interest on the Securities. All Securities issued by the successor Person shall in all respects
have the same legal priority as the Securities theretofore or thereafter authenticated, issued and delivered in accordance with the terms
of this Indenture.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may amend the Securities of a series or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to make such provision in regard to matters
or questions arising under this Indenture as may be necessary or desirable and not inconsistent with this Indenture or for the purpose
of supplying any omission, curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision, provided
that such provision shall not adversely affect the interests of Holders of Outstanding Securities created prior to the execution of such
supplemental indenture in any material respect; or
(2) to change or eliminate any of the provisions
of this Indenture, provided that any such change or elimination shall become effective only when there is no Outstanding Security of any
series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(3) to secure the Securities; or
(4) to establish the form of Securities of any
series as permitted by Section 2.01 and Section 3.01; or
(5) to evidence the succession of another Person
to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(6) to grant to or confer upon the Trustee for
the benefit of the Holders any additional rights, remedies, powers or authority; or
(7) to permit the Trustee to comply with any duties
imposed upon it by law; or
(8) to specify further the duties and responsibilities
of, and to define further the relationships among, the Trustee, any Authenticating Agent and any Paying Agent; or
(9) to add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender a right
or power conferred on the Company herein; or
(10) to add any additional Events of Default (and
if such Events of Default are to be applicable to less than all series of Securities, stating that such Events of Default are expressly
being included for the benefit of such series).
Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than
a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders
delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall:
(1) change the Stated Maturity of any Security;
or reduce the rate of interest on any Security; or change the method of calculating interest, or any term used in the calculation of interest,
or the period for which interest is payable, on any Security; or reduce the principal amount of any Security or any premium thereon; or
reduce the
payment of any mandatory sinking fund or analogous obligation; or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Maturity thereof; or adversely affect the right of repayment
or renewal, if any, at the option of the Holders; or change the coin or currency in which the principal of any Security or any premium
or interest thereon is payable; or change the date on which any Security may be redeemed; or adversely affect the rights of any Holding
to institute suit for the enforcement of any payment of principal of or any premium or interest on any Security, in each case without
the consent of the Holder of each Outstanding Security that would be affected thereby (for purposes of this Section 9.02(1) only, the
term “Security” shall include Securities for which an offer to purchase has been accepted by the Company); or
(2) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such supplemental indenture, or the percentage in aggregate principal amount of the
Outstanding Securities the consent of the Holders of which is required for any waiver of certain past defaults or Events of Default hereunder
or the consequences thereof, in each case without the consent of the Holders of all of the Outstanding Securities.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.07 Notice of Supplemental Indenture.
Promptly after the execution by the Company and
the appropriate Trustee of any supplemental indenture, the Company shall transmit, as provided herein, to all Holders of any series of
the Securities affected thereby, a notice setting forth in general terms the substance of such supplemental indenture.
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit
of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities
of that series in accordance with the terms of the Securities and this Indenture.
Section 10.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment
an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company terminates the appointment of a Paying Agent or Security Registrar or otherwise shall fail to maintain any
such required office or agency, the Company shall use its reasonable best efforts to appoint a successor Paying Agent or Security Registrar
reasonably acceptable to the Trustee. If the Company fails to maintain a Paying Agent or Security Registrar, the Trustee will act as such,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in each Place of Payment for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default
by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 10.04 Corporate Existence.
Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 10.05 Statement as to Default.
(1) The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, a certificate, signed by the principal executive
officer, principal financial officer or principal accounting officer of the Company, stating whether or not to the best knowledge of the
signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have knowledge.
(2) The Company will give to the Trustee written
notice of the occurrence of an Event of Default within five days after the Company becomes aware of such occurrence.
Section 10.06 Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth in Section 8.01 with respect to the Securities of any series if, before the
time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by
Act of such Holders, either waive compliance in such instance or generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated in Section
3.01 for Securities of any series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are
to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date, from the Outstanding Securities of such series not previously
called for redemption, by lot, which may provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series; provided that in any case where the Securities are in the
form of Global Securities, the Securities to be redeemed shall be selected in accordance with the policies and procedures of the Depositary.
If the Company shall so specify and identify the appropriate Securities, Securities owned of record and beneficially by the Company or
any Subsidiary shall not be included in the Securities selected for redemption.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall, unless otherwise specified
by the terms of the Securities to be redeemed, be given not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, in accordance with Section 1.06.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price (or if not then ascertainable,
the manner of calculation thereof);
(3) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, which shall be the office or agency of the Company in each Place of Payment;
(4) that payment of the Redemption Price will be
made on the surrender of such Securities at such place or places of redemption;
(5) that accrued interest to the Redemption Date
will be paid as specified in such notice and that from and after the Redemption Date interest on such Securities will cease to accrue;
(6) if less than all the Outstanding Securities
of any series are to be redeemed (unless all the Securities of such series of a specified tenor are to be redeemed), the identification
(and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed;
(7) in the case of partial redemption of any Securities,
that upon surrender of such Securities, a new Security or new Securities having the same terms will be issued in aggregate principal amount
equal to the unredeemed portion;
(8) that redemption is subject to the receipt by
the Trustee or a Paying Agent prior to the Redemption Date of sufficient funds to make the redemption, if such is the case; and
(9) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.
Section 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security
so surrendered. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities
of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities
of a series to the Trustee for cancellation (other than any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company or the Holders, if applicable, pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series or may apply Securities of such series which
have been previously cancelled; provided that such Securities have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of
such mandatory sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Mandatory Sinking Fund.
Not less than 60 days prior to each mandatory sinking
fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities or applying previously cancelled Securities of that series pursuant to Section 12.02 and the basis for such credit and will
also deliver to the Trustee any Securities to be so delivered which have not theretofore been delivered to the Trustee. Not less than
30 days before each such mandatory sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such mandatory
sinking fund payment date in the manner specified in Section 11.02 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.03. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 11.04, Section 11.05 and Section 11.06.
ARTICLE XIII.
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Securities of any series that are repayable before
their Stated Maturity at the option of the Holders shall be repaid in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 13.02 Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities
of any series shall, unless otherwise specified by the terms of the Securities of such series, be given by the Company not less than 10
nor more than 60 days prior to such Repayment Date, to the Trustee and to each Holder of Securities of such series in accordance with
Section 1.05 and Section 1.06, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are
to be surrendered for payment of the Repayment Price, which shall be the office or agency of the Company in each Place of Payment, and
the date by which Securities must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder
must follow to exercise a repayment right; and
(5) that exercise of the option to elect repayment
is irrevocable.
No failure of the Company to give the foregoing
notice shall limit any Holder’s right to exercise a repayment right.
Section 13.03 Deposit of Repayment Price.
On or prior to any Repayment Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 10.03) an amount of money sufficient to pay the Repayment Price of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities of such series which are to be repaid on that date.
Section 13.04 Securities Payable on Repayment Date.
The form of option to elect repayment having been
delivered as specified in the form of Security for such series as provided in Section 2.01, the Securities so to be repaid shall, on the
Repayment Date, become due and payable at the Repayment Price applicable thereto, and from and after such date (unless the Company shall
default in the payment of the Repayment Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for repayment in accordance with said notice, such Security shall be paid by the Company at the Repayment Price, together
with accrued interest to the Repayment Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments
of interest whose Stated Maturity is on or prior to such Repayment Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Record Date according to their terms and the provisions
of Section 3.07.
If any Security to be repaid shall not be so paid
upon surrender thereof for repayment, the principal shall, until paid, bear interest from the Repayment Date at the rate prescribed in
the Security.
Section 13.05 Securities Repaid in Part.
Any Security which by its terms may be repaid in
part at the option of the Holder thereof and which is to be repaid only in part shall be surrendered at any office or agency of the Company
designated for that purpose pursuant to Section 10.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unrepaid portion of the principal of the Security
so surrendered. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
ARTICLE XIV.
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Applicability of Article; Company’s Option to
Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is made for
either or both of (a) defeasance of the Securities of a series under Section 14.02 or (b) covenant defeasance of the Securities of a series
under Section 14.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article
XIV, shall be applicable to the Securities of such series, and the Company may at its option at any time with respect to the Securities
of such series, elect to have either Section 14.02 (if applicable) or Section 14.03 (if applicable) be applied to the Outstanding Securities
of such series upon compliance with the conditions set forth below in this Article XIV.
Section 14.02 Defeasance and Discharge.
Upon the Company’s exercise of the above
option applicable to this Section with respect to the Outstanding Securities of a particular series, the Company shall be deemed to have
been discharged from its obligations with respect to the Outstanding Securities of such series (except for certain obligations to register
the transfer or exchange of Securities of such series, to replace stolen, lost or mutilated Securities of such series, and to maintain
paying agencies) on and after the date the conditions precedent set forth in Section 14.04 are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented
by the Outstanding Securities of such series and to have satisfied all its other obligations under such Securities and this Indenture
insofar as such Securities are concerned (and the Trustee, at the expense of the Company and upon Company Request, shall execute proper
instruments acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder:
(A) the rights of Holders of Outstanding Securities of such series to receive, solely from the trust fund described in Section 14.04 as
more fully set forth in such Section, payments of the principal of and any premium and interest on such Securities when such payments
are due, (B) the Company’s obligations with respect to such Securities under Section 3.04, Section 3.05, Section 3.06, Section 6.07,
Section 10.02 and Section 10.03 and such obligations as shall be ancillary thereto, (C) the rights, powers, trusts, duties, immunities
and other provisions in respect of the Trustee hereunder and (D) this Article XIV. Subject to compliance with this Article XIV, the Company
may exercise its option under this Section 14.02 notwithstanding the prior exercise of its option under Section 14.03 with respect to
the Securities of such series.
Section 14.03 Covenant Defeasance.
Upon the Company’s exercise of the above
option applicable to this Section with respect to the Outstanding Securities of a particular series, the Company shall be released from
its obligations under Section 8.01 (and any other covenant applicable to such Securities that is determined pursuant to Section 3.01 to
be subject to covenant defeasance under this Section) and the occurrence of an event specified in Section 5.01(4) with respect to Section
8.01 (and any other Event of Default applicable to such Securities that is determined pursuant to Section 3.01 to be subject to covenant
defeasance under this Section) shall not be deemed to be an Event of Default with respect to the Outstanding Securities of such series
on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter, “covenant defeasance”).
For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series, the Company may omit
to comply with and shall have no liability in respect of any term, condition, limitation or restrictive covenant set forth in any such
specified Section or Article whether directly or indirectly by reason of any reference elsewhere herein to any such Section or Article
or by reason of any reference in any such Section or Article to any other provision herein or in any other document, including any supplement
hereto, any Board Resolution or Officers’ Certificate delivered hereto but the remainder of this Indenture and such Securities shall
be unaffected thereby.
Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent
to application of either Section 14.02 or Section 14.03 to the Outstanding Securities of a particular series:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee or an affiliate of the Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article XIV applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, without reinvestment of interest earned thereon, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereto delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of and any premium, if any, and interest on the Outstanding
Securities of such series on the maturity of such principal, premium or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day on which such payments are due in accordance with the terms
of this Indenture and of such Securities. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article XI, which shall be given effect in applying the foregoing.
For this purpose, “U.S. Government Obligations” means securities that are (x) direct obligations of the United States
for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation
evidenced by such depositary receipt.
(2) No Event of Default with respect to the Securities
of such series shall have occurred and be continuing (A) on the date of such deposit or (B) insofar as Section 5.01(7) and Section 5.01(8)
are concerned, at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that the condition
in this condition shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall
not (A) cause the Trustee for the Securities of such series to have a conflicting interest as defined in Section 6.08 or for purposes
of the Trust Indenture Act with respect to any securities of the Company or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(5) In the case of an election under Section 14.02,
the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had not occurred.
(6) In the case of an election under Section 14.03,
the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of
such series will not recognize
income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance
and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall
be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.01.
(8) The Company shall have delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the
defeasance under Section 14.02 or the covenant defeasance under Section 14.03 (as the case may be) have been complied with.
Section 14.05 Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively, for purposes for this Section 14.05, the “Trustee”) pursuant to Section 14.04 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (but not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal, premium
and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the money or U.S. Government Obligations deposited pursuant to Section
14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
Section 14.06 Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 14.02 or Section 14.03 with respect to the Securities of any series by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant
to this Article XIV until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 14.02
or Section 14.03; provided, however, that if the Company makes any payment of the principal of or any premium or interest on any such
Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE XV.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 15.01 Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment
or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors,
as such, of the Company or any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or
under or by this Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom
are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue
of such Securities.
* * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, as of the day and year first above written.
| |
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PACIFICORP |
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|
|
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By: |
|
| |
Name: |
|
| |
Title: |
|
| |
|
| |
, as Trustee |
| |
|
|
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By: |
|
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Name: |
|
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Title: |
|
Exhibit 4.4
PACIFICORP
AND
, as Trustee
Indenture
Dated as of , 20
Subordinated Debt Securities
Reconciliation and tie between
the Trust Indenture Act of 1939
and Indenture,
dated as of , 20 *
Trust
Indenture
Act Section |
|
Indenture
Section |
| Section
310(a)(1) |
|
6.09 |
| (a)(2) |
|
6.09 |
| (a)(3) |
|
Not
Applicable |
| (a)(4) |
|
Not
Applicable |
| (a)(5) |
|
6.08,
6.10 |
| (b) |
|
6.08,
6.10 |
| Section
311(a) |
|
6.13 |
| (b) |
|
6.13 |
| Section
312(a) |
|
7.01,
7.02(a) |
| (b) |
|
7.02(b) |
| (c) |
|
7.03 |
| Section
313(a) |
|
7.03 |
| (b) |
|
7.03 |
| (c) |
|
7.03 |
| (d) |
|
7.03 |
| Section
314(a) |
|
7.04,
10.05 |
| (b) |
|
Not
Applicable |
| (c)(1) |
|
1.02 |
| (c)(2) |
|
1.02 |
| (c)(3) |
|
Not
Applicable |
| (d) |
|
Not
Applicable |
| (e) |
|
1.02 |
| (f) |
|
Not
Applicable |
| Section
315(a) |
|
6.01 |
| (b) |
|
6.02 |
| (c) |
|
6.01 |
Trust Indenture
Act Section |
|
Indenture
Section |
| (d) |
|
6.01 |
| (e) |
|
5.14 |
| Section 316(a) |
|
1.01 |
| (a)(1)(A) |
|
5.12 |
| (a)(1)(B) |
|
5.13 |
| (a)(2) |
|
Not Applicable |
| (b) |
|
5.08 |
| Section 317(a)(1) |
|
5.03 |
| (a)(2) |
|
5.04 |
| (b) |
|
10.03 |
| Section 318(a) |
|
1.07 |
| (c) |
|
1.07 |
* This table shall not, for
any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
| |
|
Page |
| ARTICLE
I. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
5 |
| Section
1.01 |
Definitions |
5 |
| Section
1.02 |
Compliance
Certificates and Opinions |
10 |
| Section
1.03 |
Form
of Documents Delivered to Trustee |
10 |
| Section
1.04 |
Acts
of Holders; Record Dates |
11 |
| Section
1.05 |
Notices,
Etc., to Trustee and Company |
12 |
| Section
1.06 |
Notice
to Holders; Waiver |
13 |
| Section
1.07 |
Conflict
with Trust Indenture Act |
13 |
| Section
1.08 |
Effect
of Headings and Table of Contents |
13 |
| Section
1.09 |
Successors
and Assigns |
13 |
| Section
1.10 |
Separability
Clause |
13 |
| Section
1.11 |
Benefits
of Indenture |
13 |
| Section
1.12 |
Governing
Law |
14 |
| Section
1.13 |
Legal
Holidays |
14 |
| Section
1.14 |
Waiver
of Jury Trial |
14 |
| Section
1.15 |
Force
Majeure |
14 |
| Section
1.16 |
Submission
to Jurisdiction |
14 |
| Section
1.17 |
FATCA |
14 |
| Section
1.18 |
Counterparts |
15 |
| |
|
| ARTICLE
II. SECURITY FORMS |
15 |
| Section
2.01 |
Forms
of Securities |
15 |
| Section
2.02 |
Form
of Trustee’s Certificate of Authentication |
15 |
| Section
2.03 |
Securities
in Global Form |
15 |
| |
|
| ARTICLE
III. THE SECURITIES |
16 |
| Section
3.01 |
Amount
Unlimited; Issuable in Series |
16 |
| Section
3.02 |
Denominations |
17 |
| Section
3.03 |
Execution,
Authentication, Delivery and Dating |
18 |
| Section
3.04 |
Temporary
Securities |
19 |
| Section
3.05 |
Registration,
Registration of Transfer and Exchange and Book-Entry Securities |
19 |
| Section
3.06 |
Mutilated,
Destroyed, Lost and Stolen Securities |
21 |
| Section
3.07 |
Payment
of Interest; Interest Rights Preserved |
21 |
| Section
3.08 |
Persons
Deemed Owners |
22 |
| Section
3.09 |
Cancellation |
22 |
| Section
3.10 |
Computation
of Interest |
23 |
| Section
3.11 |
CUSIP
Numbers |
23 |
| Section
3.12 |
Deferrals
of Interest Payment Dates |
23 |
| |
|
| ARTICLE
IV. SATISFACTION AND DISCHARGE |
23 |
| Section
4.01 |
Satisfaction
and Discharge of Indenture |
23 |
| Section
4.02 |
Application
of Trust Money |
24 |
| |
|
| ARTICLE
V. EVENTS OF DEFAULT; REMEDIES |
25 |
| Section
5.01 |
Events
of Default |
25 |
| Section
5.02 |
Acceleration
of Maturity; Rescission and Annulment |
26 |
| Section
5.03 |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
27 |
| Section
5.04 |
Trustee
May File Proofs of Claim |
28 |
| Section
5.05 |
Trustee
May Enforce Claims Without Possession of Securities |
28 |
| Section
5.06 |
Application
of Money Collected |
28 |
| Section
5.07 |
Limitation
on Suits |
28 |
| Section
5.08 |
Unconditional
Right of Holders to Receive Principal, Premium and Interest |
29 |
| Section
5.09 |
Restoration
of Rights and Remedies |
29 |
| Section
5.10 |
Rights
and Remedies Cumulative |
29 |
| Section
5.11 |
Delay
or Omission Not Waiver |
29 |
| Section
5.12 |
Control
by Holders |
30 |
| Section
5.13 |
Waiver
of Defaults |
30 |
| Section
5.14 |
Undertaking
for Costs |
31 |
| Section
5.15 |
Waiver
of Stay or Extension Laws |
31 |
| |
|
| ARTICLE
VI. THE TRUSTEE |
31 |
| Section
6.01 |
Certain
Duties and Responsibilities |
31 |
| Section
6.02 |
Notice
of Defaults |
32 |
| Section
6.03 |
Certain
Rights of Trustee |
32 |
| Section
6.04 |
Not
Responsible for Recitals or Issuance of Securities |
33 |
| Section
6.05 |
May
Hold Securities |
33 |
| Section
6.06 |
Money
Held in Trust |
33 |
| Section
6.07 |
Compensation
and Reimbursement |
33 |
| Section
6.08 |
Disqualification;
Conflicting Interests |
34 |
| Section
6.09 |
Corporate
Trustee Required; Eligibility |
34 |
| Section
6.10 |
Resignation
and Removal; Appointment of Successor |
34 |
| Section
6.11 |
Acceptance
of Appointment by Successor |
35 |
| Section
6.12 |
Merger,
Conversion, Consolidation or Succession to Business |
36 |
| Section
6.13 |
Preferential
Collection of Claims Against Company |
36 |
| Section
6.14 |
Appointment
of Authenticating Agent |
37 |
| |
|
| ARTICLE
VII. HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
38 |
| Section
7.01 |
Company
to Furnish Trustee Names and Addresses of Holders. |
38 |
| Section
7.02 |
Preservation
of Information; Communications to Holders |
38 |
| Section
7.03 |
Reports
by Trustee |
38 |
| Section
7.04 |
Reports
by Company |
39 |
| Section
7.05 |
Holders’
Meetings |
39 |
| |
|
| ARTICLE
VIII. CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
40 |
| Section
8.01 |
Company
May Consolidate, Etc., Only on Certain Terms |
40 |
| Section
8.02 |
Successor
Substituted |
41 |
| |
|
| ARTICLE
IX. SUPPLEMENTAL INDENTURES |
41 |
| Section
9.01 |
Supplemental
Indentures Without Consent of Holders |
41 |
| Section
9.02 |
Supplemental
Indentures With Consent of Holders |
42 |
| Section
9.03 |
Execution
of Supplemental Indentures |
43 |
| Section
9.04 |
Effect
of Supplemental Indentures |
43 |
| Section
9.05 |
Conformity
with Trust Indenture Act |
43 |
| Section
9.06 |
Reference
in Securities to Supplemental Indentures |
43 |
| Section
9.07 |
Notice
of Supplemental Indenture |
43 |
| Section
9.08 |
Subordination
Unimpaired |
43 |
| |
|
| ARTICLE
X. COVENANTS |
43 |
| Section
10.01 |
Payment
of Principal, Premium and Interest |
43 |
| Section
10.02 |
Maintenance
of Office or Agency |
44 |
| Section
10.03 |
Money
for Securities Payments to Be Held in Trust |
44 |
| Section
10.04 |
Corporate
Existence |
45 |
| Section
10.05 |
Statement
as to Default |
45 |
| Section
10.06 |
Waiver
of Certain Covenants |
45 |
| |
|
| ARTICLE
XI. REDEMPTION OF SECURITIES |
45 |
| Section
11.01 |
Applicability
of Article |
45 |
| Section
11.02 |
Election
to Redeem; Notice to Trustee |
45 |
| Section
11.03 |
Selection
by Trustee of Securities to Be Redeemed |
46 |
| Section
11.04 |
Notice
of Redemption |
46 |
| Section
11.05 |
Deposit
of Redemption Price |
47 |
| Section
11.06 |
Securities
Payable on Redemption Date |
47 |
| Section
11.07 |
Securities
Redeemed in Part |
47 |
| |
|
| ARTICLE
XII. SINKING FUNDS |
47 |
| Section
12.01 |
Applicability
of Article |
47 |
| Section
12.02 |
Satisfaction
of Mandatory Sinking Fund Payments with Securities |
48 |
| Section
12.03 |
Redemption
of Securities for Mandatory Sinking Fund |
48 |
| |
|
| ARTICLE
XIII. REPAYMENT OF SECURITIES AT OPTION OF HOLDERS |
48 |
| Section
13.01 |
Applicability
of Article |
48 |
| Section
13.02 |
Notice
of Repayment Date |
48 |
| Section
13.03 |
Deposit
of Repayment Price |
49 |
| Section
13.04 |
Securities
Payable on Repayment Date |
49 |
| Section
13.05 |
Securities
Repaid in Part |
49 |
| |
|
| ARTICLE
XIV. DEFEASANCE AND COVENANT DEFEASANCE |
49 |
| Section
14.01 |
Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance |
49 |
| Section
14.02 |
Defeasance
and Discharge |
50 |
| Section
14.03 |
Covenant
Defeasance |
50 |
| Section
14.04 |
Conditions
to Defeasance or Covenant Defeasance |
50 |
| Section
14.05 |
Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
52 |
| Section
14.06 |
Reinstatement |
52 |
| |
|
|
| ARTICLE
XV. IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
52 |
| Section
15.01 |
Immunity
of Incorporators, Stockholders, Officers and Directors |
52 |
| |
|
| ARTICLE
XVI. SUBORDINATION OF SECURITIES |
53 |
| Section
16.01 |
Securities
Subordinate to Senior Debt |
53 |
| Section
16.02 |
Trustee
and Holders of Securities May Rely on Certificate of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior
Debt; Trustee Not Fiduciary to Holders of Senior Debt |
54 |
| Section
16.03 |
Payment
Permitted If No Default |
55 |
| Section
16.04 |
Trustee
Not Charged with Knowledge of Prohibition |
55 |
| Section
16.05 |
Trustee
to Effectuate Subordination |
56 |
| Section
16.06 |
Rights
of Trustee as Holder of Senior Debt |
56 |
| Section
16.07 |
Article
Applicable to Paying Agents |
56 |
| Section
16.08 |
Subordination
Rights Not Impaired by Acts or Omissions of the Company or Holders of Senior Debt |
56 |
INDENTURE, dated as of , 20 , between PACIFICORP,
a corporation duly organized and existing under the laws of the State of Oregon (herein called the “Company”), having
its principal office at 825 N.E. Multnomah Street, Suite 2000, Portland, Oregon 97232, and , a national banking association duly organized
and existing under the laws of the United States, as Trustee (herein called the “Trustee”), having its Corporate Trust
Office at .
RECITALS OF THE COMPANY
The Company has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences
of indebtedness (herein called the “Securities”), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the
purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate benefit of all
Holders of the Securities or of any series thereof, as follows:
ARTICLE I.
DEFINITIONS AND OTHER
PROVISIONS OF GENERAL APPLICATION
Section 1.01 Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined
in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with generally accepted accounting principles;
(4) the words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section
or other subdivision.
Certain terms, used principally in Article VI,
are defined in that Article.
“Act,” when used with respect
to any Holder, has the meaning specified in Section 1.04.
“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 specified Person, means the
power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting securities,
by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means
any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more
series.
“Authorized Newspaper” means
a newspaper of general circulation in the relevant area, printed in the English language and customarily published on each Business Day
therein.
“Board of Directors” means either
the board of directors of the Company or any duly authorized committee of that board or any director or directors and/or officer or officers
of the Company to whom that board or committee shall have duly delegated its authority.
“Board Resolution” means a copy
of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day,” when used with
respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions
in that Place of Payment are authorized or obligated by law or executive order to close.
“Capital Stock,” as applied
to the stock of any corporation, means the capital stock of every class whether now or hereafter authorized, regardless of whether such
capital stock shall be limited to a fixed sum or percentage with respect to the rights of the holders thereof to participate in dividends
and in the distribution of assets upon the voluntary or involuntary liquidation, dissolution or winding up of such corporation.
“Commission” means the Securities
and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended or, if at any
time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
“Company” means the Person named
as the “Company” in the first paragraph of this Indenture until a successor corporation shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” or “Company
Order” means a written request or order signed in the name of the Company by its Chairman of the Board, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered to the Trustee.
“Corporate Trust Office” means
the designated corporate trust office of the Trustee at which, at any particular time, its corporate trust business shall be administered,
which office at the date hereof is located at .
“Corporation” includes corporations,
associations, companies and business trusts.
“Debt” means, with respect to
any Person, (a) any liability of such Person (i) for borrowed money or (ii) evidenced by a bond, note, debenture or similar instrument
(including purchase money obligations but excluding trade payables), or (iii) for the payment of money relating to a lease, whether or
not such lease is required to be classified as a capitalized lease obligation in accordance with GAAP; (b) any liability of others described
in the preceding clause (a) that such Person has guaranteed, that is recourse to such Person or that is otherwise such Person’s
legal liability; and (c) any amendment, supplement, modification, deferral, renewal, extension or refunding of any liability of the types
referred to in clauses (a) and (b) above.
“Defaulted Interest” has the
meaning specified in Section 3.07.
“Depositary” means, with respect
to the Securities of any series issuable or issued in the form of a Global Security, a clearing agency registered under the Securities
Exchange Act of 1934, as amended, or any successor thereto, which shall in either case be designated by the Company pursuant to Section
3.01 or 3.05 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
“Depositary” shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one
such Person, “Depositary” as used with respect to the Securities of any such series shall mean the Depositary with respect
to the Securities of that series.
“Electronic Means” shall mean
the following communications methods: e-mail or secure electronic transmission containing applicable authorization codes, passwords and/or
authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with
its services hereunder.
“ERISA” means the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder.
“Event of Default” has the meaning
specified in Section 5.01.
“Extension Period” has the meaning
specified in Section 3.12.
“GAAP” means, as of any date
of computation, generally accepted accounting principles in the United States, consistently applied, that are in effect on the date of
such computation.
“Global Security or Securities”
means one or more fully registered Securities in global form evidencing all or a part of a series of Securities issued to the Depositary
for such series or its nominee or registered in the name of the Depositary or its nominee.
“Holder” means a Person in whose
name a Security is registered in the Security Register.
“Indenture” means this instrument
as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of particular series of Securities established as contemplated
by Section 3.01.
“interest,” when used with respect
to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Interest Payment Date,” when
used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity,” when used with respect
to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or by repayment or otherwise.
“Notice of Default” has the
meaning specified in Section 5.01(4).
“Officers’ Certificate”
means a certificate signed by at least two officers of the Company, one signature being that of the Chairman of the Board, the Vice Chairman
of the Board, the President or a Vice President, and the other signature being that of the Treasurer, an Assistant Treasurer, the Secretary
or an Assistant Secretary, of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a
written opinion of counsel, who may be counsel for the Company, and who shall be acceptable to the Trustee.
“Original Issue Discount Security”
means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration
of the Maturity thereof pursuant to Section 5.02.
“Outstanding,” when used with
respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities theretofore canceled by the Trustee
or delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption
money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
(iii) Securities which have been paid pursuant
to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture,
other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
(iv) Securities, except to the extent provided
in Sections 14.02 and 14.03, with respect to which the Company has effected a defeasance and/or covenant defeasance as provided in Article
XIV, subject to certain provisions of this Indenture that continue after defeasance;
provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, (a) the principal amount of an Original Issue Discount
Security that shall be deemed to be Outstanding shall be the amount of the principal thereof that would be due and payable as of the date
of such determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, and (b) Securities owned by
the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the Trustee knows to be so owned shall be so disregarded. Securities
so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
“Paying Agent” means any Person
authorized by the Company to pay the principal of (and premium, if any) or interest on any Securities on behalf of the Company.
“Person” means any individual,
corporation, limited liability company, partnership, joint venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where the principal of (and premium, if any) and interest on the
Securities of that series are payable as specified as contemplated by Section 3.01.
“Predecessor Security” of any
particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Redemption Date,” when used
with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,” when used
with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date” for the
interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated
by Section 3.01.
“Repayment Date” means, when
used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant to this Indenture.
“Repayment Price” means, when
used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid by or pursuant to this
Indenture.
“Responsible Officer,” when
used with respect to the Trustee, means any officer of the Trustee customarily performing corporate trust functions who shall have direct
responsibility for the administration of this Indenture.
“Securities” has the meaning
stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Security Register” and “Security
Registrar” have the respective meanings specified in Section 3.05.
“Senior Debt” means (i) all
indebtedness of the Company (including Senior Debt Securities), whether outstanding at the date of this Indenture or incurred, created
or assumed after such date, (a) in respect of money borrowed by the Company (including any financial derivative, hedging or futures contract
or similar instrument, to the extent any such item is primarily a financing transaction) and (b) evidenced by debentures, bonds, notes,
credit or loan agreements or other similar instruments or agreements issued or entered into by the Company; (ii) all finance and
capitalized lease obligations of the Company; (iii) all obligations of the Company issued or assumed as the deferred purchase price
of property, all conditional sale obligations of the Company and all obligations of the Company under any title retention agreement (but
excluding, for the avoidance of doubt, trade accounts payable arising in the ordinary course of business); (iv) all obligations of
the Company for the reimbursement of any letter of credit, banker’s acceptance, security purchase facility or similar credit transaction;
and (v) all obligations of the type referred to in clauses (i) through (iv) above of other Persons for the payment of which the Company
is responsible or liable as obligor, guarantor or otherwise; provided, however, that, unless otherwise provided pursuant to Section 3.01(19)
with respect to the Securities of such series, in no event shall “Senior Debt” include (1) any obligations, instruments or
agreements of the type referred to in any of clauses (i) through (v) above that, by the terms of the instruments or agreements creating
or evidencing the same or pursuant to which the same is outstanding, are expressly subordinated or equal in right of payment to the Securities
of such series, (2) Debt of the Company owed or owing to any Subsidiary of the Company or any officer, director or employee of the Company
or any Subsidiary of the Company, and (3) any liability for taxes owed or owing by the Company.
“Senior Debt Securities” means,
collectively, (i) any debt securities issued by the Company pursuant to the Mortgage and Deed of Trust, dated as of January 9, 1989, between
the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee, as amended and supplemented, and (ii) any debt
securities issued by the Company pursuant to the Indenture (Senior Debt Securities), dated as of , 20 , between the Company and the
trustee thereunder.
“Special Record Date” for the
payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“Stated Maturity,” when used
with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as
the fixed date on which the principal or such installment of principal of (and premium, if any) or interest on such Security is due and
payable.
“Subsidiary” means a corporation
or limited liability company more than 50% of the outstanding voting Capital Stock or voting membership interests of which is or are owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries. For
the purposes of this definition, (1) “voting Capital Stock” means stock which ordinarily has voting power for the election
of directors, whether at all times or only so long as no senior class of stock has such voting power by reason of any contingency, and
(2) “voting membership interests” means membership interests which ordinarily have voting power for the election of directors
(or the equivalent thereof), whether at all times or only so long as no senior class of membership interests have such voting power by
reason of any contingency.
“Trustee” means the Person named
as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee
hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any
series shall mean the Trustee with respect to Securities of that series.
“Trust Indenture Act” means
the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however, that in the event
the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
“United States” means the United
States of America.
“U.S. Government Obligations”
has the meaning specified in Section 14.04.
“Vice President,” when used
with respect to the Company, means any vice president, whether or not designated by a number or a word or words added before or after
the title “vice president.”
Section 1.02 Compliance Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with,
except that in the case of any such application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance
with a condition or covenant provided for in this Indenture (other than the certificate provided for in Section 10.05) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope
of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, such individual has made such examination or investigation as is necessary to enable the individual to express an informed
opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of
each such individual, such condition or covenant has been complied with.
Section 1.03 Form of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the
Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless
such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect
to the matters upon which such Holder’s certificate or opinion are based are erroneous. Any such certificate or Opinion of Counsel
may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters
are erroneous.
Where any Person is required to make, give or execute
two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may,
but need not, be consolidated and form one instrument.
Section 1.04 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders may be embodied in and evidenced by
one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and,
except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to
the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein
and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments.
Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture
and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person
of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public
or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing
acknowledged to such witness or certifying individual the execution thereof. Where such execution is by a signer acting in a capacity
other than such Holder’s individual capacity, such certificate or affidavit shall also constitute sufficient proof of such Holder’s
authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may
also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved
by the Security Register.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder
of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done,
omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, in the circumstances permitted
by the Trust Indenture Act, fix any day as the record date for the purpose of determining the Holders of Securities of any series entitled
to give or take any request, demand, authorization, direction, notice, consent, waiver or other action, or to vote on any action, authorized
or permitted to be given or taken by Holders of Securities of such series. If not set by the Company prior to the first solicitation of
a Holder of Securities of such series made by any Person in respect of any such action, or in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if later, the date of the most recent list of Holders required
to be provided pursuant to Section 7.01) prior to such first solicitation or vote, as the case may be. With regard to any record date
for action to be taken by the Holders of one or more series of Securities, only the Holders of Securities of such series on such date
(or their duly designated proxies) shall be entitled to give or take, or vote on, the relevant action.
(f) Without limiting the foregoing, a Holder entitled
hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal
amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all
or any part of such principal amount. Any notice given or action taken by a Holder or its agents with regard to different parts of
such
principal amount pursuant to this paragraph shall have the same effect as if given or taken by separate Holders of each such different
part.
(g) Without limiting the generality of the foregoing,
unless otherwise specified pursuant to Section 3.01 or pursuant to one or more indentures supplemental hereto, a Holder, including a Depositary
that is the Holder of a Global Security, may make, give or take, by a proxy or proxies duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and
a Depositary that is the Holder of a Global Security may provide its proxy or proxies to the beneficial owners of interests in any such
Global Security through such Depositary’s standing instructions and customary practices.
(h) The Trustee shall fix a record date for the
purpose of determining the Persons who are beneficial owners of interests in any Global Security held by a Depositary entitled under the
procedures of such Depositary to make, give or take, by a proxy or proxies duly appointed in writing, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders. If such a record
date is fixed, the Holders on such record date or their duly appointed proxy or proxies, and only such Persons, shall be entitled to make,
give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization, direction, notice, consent, waiver or other action shall be valid
or effective if made, given or taken more than 90 days after such record date.
Section 1.05 Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with,
(1) the Trustee by any Holder or by the Company
shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: , or
(2) the Company by the Trustee or by any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture, Attention:
Secretary, or at any other address previously furnished in writing to the Trustee by the Company.
The Trustee shall have the right to accept and
act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered
using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with
the authority to provide such Instructions (“Authorized Officers”) and containing specimen signatures of such Authorized Officers,
which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company
elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions,
the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee
cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions
that purport to have been sent by an Authorized Officer listed on the incumbency certificate provided to the Trustee have been sent by
such Authorized Officer. The Company shall be responsible for ensuring that only Authorized Officers transmit such Instructions to the
Trustee and that the Company and all Authorized Officers are solely responsible to safeguard the use and confidentiality of applicable
user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any
losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions
notwithstanding whether such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees: (i) to
assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk
of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed
of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more
secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to
be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light
of its particular needs and
circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized
use of the security procedures.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event or any other communication (including any notice
of redemption or repurchase) to a holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given
if given to the Depositary (or its designee) pursuant to the standing instructions from the Depositary or its designee, including by electronic
mail in accordance with accepted practices at the Depositary.
Section 1.06 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders
of any event, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder’s address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Any notice to a Holder which is mailed in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives such notice. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall
not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities
in regular mail service or by reason of any other cause, it shall be impracticable to give notice of any event to Holders by mail when
such notice is required to be given pursuant to any provision of this Indenture, then such notification as shall be made with the approval
of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Section 1.07 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts
with the duties imposed by any of Section 3.10 through Section 3.17, inclusive, of the Trust Indenture Act through the operation of Section
3.18(c) thereof, such imposed duties shall control. If any provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or shall
be deemed to be so excluded, as the case may be.
Section 1.08 Effect of Headings and Table of Contents.
The Article and Section headings herein and the
Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.09 Successors and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the
Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, any Paying Agent, the Holders
and, with respect to Article XVI of this
Indenture, the holders of Senior Debt, any benefit or any legal or equitable right, remedy or
claim under this Indenture; provided that this Section 1.11 shall not limit the rights of any Holder of a Global Security to give any
notice or take any action, or appoint any agents, with regard to any part or different parts of the principal amount of such Global Security
pursuant to Section 1.04.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed
by and construed in accordance with the laws of the State of New York and for all purposes shall be governed by and construed in accordance
with the laws of said state without regard to the conflicts of laws and rules of said state.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date, Repayment Date, sinking fund payment date or Stated Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities) payment of interest or principal (and premium, if any)
need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date or at the Stated Maturity, provided that no interest shall accrue
for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date or Stated Maturity,
as the case may be.
Section 1.14 Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 1.15 Force Majeure.
In no event shall the Trustee be responsible or
liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces
beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances,
epidemics or pandemics, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 1.16 Submission to Jurisdiction.
The Company hereby irrevocably submits to the jurisdiction
of any New York State court sitting in the Borough of Manhattan in the City of New York or any federal court sitting in the Borough of
Manhattan in the City of New York in respect of any suit, action or proceeding arising out of or relating to this Indenture and the Securities,
and irrevocably accepts for itself and in respect of its property, generally and unconditionally, jurisdiction of the aforesaid courts.
Section 1.17 FATCA.
The Company agrees (i) to provide the Trustee with
such reasonable information as it has in its possession to enable the Trustee to determine whether any payments pursuant to the Indenture
are subject to the withholding requirements described in Section 1471(b) of the US Internal Revenue Code of 1986 (the “Code”)
or otherwise imposed pursuant to Sections 1471 through 1474 of the Code and any regulations, or agreements thereunder or official interpretations
thereof (“Applicable Law”), and (ii) that the Trustee shall be entitled to make any withholding or deduction from payments
under the Indenture to the extent necessary to comply with Applicable Law, for which the Trustee shall not have any liability.
Section 1.18 Counterparts.
This Indenture may be executed in several counterparts,
each of which shall be an original and all of which shall constitute but one and the same instrument. This Indenture may be executed in
any number of counterparts by manual, facsimile or electronic signature, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same instrument, and signature pages may be delivered by, electronic
mail (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, Uniform Electronic Transaction Act, the New
York Electronic Signatures and Records Act (N.Y. State Tech. §§ 301-309), as amended from time to time, or other applicable
law) or other transmission method.
ARTICLE II.
SECURITY FORMS
Section 2.01 Forms of Securities.
The Securities of each series shall be in such
form or forms (including global form) as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this
Indenture, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may
be required to comply with any law or with any rules made pursuant thereto or the rules of any securities exchange or as may, consistently
herewith, be determined by the officers executing such Securities, as evidenced by their execution of such Securities. If the form of
Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The Trustee’s certificates of authentication
shall be in substantially the form set forth in this Article.
The definitive Securities shall be printed, lithographed
or engraved or may be produced in any other manner permitted by the rules of any securities exchange upon which the Securities may be
listed and (with respect to Global Securities of any Series) the rules of the Depositary, all as determined by the officers executing
such Securities, as evidenced by their execution of such Securities.
Section 2.02 Form of Trustee’s Certificate of Authentication.
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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Section 2.03 Securities in Global Form.
If any Security of a series is issuable in global
form, such Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon
and also may provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding
Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Security. Any instructions
by the Company with respect to a Security in global form, after its initial issuance, shall be in writing but need not comply with Section
1.02.
ARTICLE III.
THE SECURITIES
Section 3.01 Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which
may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series.
All Securities of each series issued under this Indenture shall in all respects be equally and ratably entitled to the benefits hereof
with respect to such series without preference, priority or distinction on account of the actual time of the authentication and delivery
or Maturity of the Securities of such series. There shall be established in or pursuant to a Board Resolution, and, to the extent not
set forth therein, set forth in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior to
the issuance of Securities of any series:
(1) the title of the Securities of the series including
CUSIP Numbers (which shall distinguish the Securities of the series from all other series of Securities);
(2) the price or prices (expressed as a percentage
of the aggregate principal amount thereof) at which the Securities will be issued;
(3) any limit upon the aggregate principal amount
of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of that series pursuant to Section 3.04,
Section 3.05, Section 3.06, Section 9.06, Section 11.06, Section 13.05 or Section 14.03);
(4) the date or dates on which the principal and
premium, if any, of the Securities of the series is payable;
(5) the rate or rates (which may be fixed or variable),
or the method of determination thereof, at which the Securities of the series shall bear interest, if any, the date or dates from which
such interest shall accrue, the Interest Payment Dates on which such interest shall be payable and the Regular Record Date for the interest
payable on any Interest Payment Date and the right of the Company to defer or extend an Interest Payment Date or, if the principal amount
payable at the Stated Maturity of any of the Securities will not be determinable as of any one or more dates prior to the Stated Maturity,
the amount which will be deemed to be such principal amount as of any such date for any purpose, including the principal amount thereof
which will be due and payable upon any Maturity other than the Stated Maturity or which will be deemed to be Outstanding as of any such
date (or, in any such case, the manner in which such deemed principal amount is to be determined);
(6) if other than the Corporate Trust Office, the
place or places where the principal of (and premium, if any) and interest on Securities of the series shall be payable;
(7) the period or periods within which, the price
or prices at which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option
of the Company;
(8) the obligation, if any, of the Company to redeem
or purchase Securities of the series pursuant to any mandatory sinking fund or analogous provisions or at the option of a Holder thereof
and the period or periods within which, the price or prices at which and the terms and conditions upon which Securities of the series
shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof, the denominations in which Securities of the series shall be issuable;
(10) if other than the principal amount thereof,
the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the Maturity
thereof pursuant to Section 5.02;
(11) if the Securities of the series shall be issued
in whole or in part in the form of a Global Security or Securities, the terms and conditions upon which such Global Security may be exchanged
in whole or in part for other individual securities and the Depositary for such Global Security or Securities;
(12) any addition to or change in the Events of
Default which applies to any Securities of the series;
(13) any addition to or change in the covenants
set forth in Article X which applies to Securities of the series;
(14) the nature and terms of the security for any
secured Securities;
(15) the form and terms of any guarantee of the
Securities;
(16) the application, if any, of Section 14.02
or Section 14.03 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions
of Article XIV;
(17) the listing of the Securities on any securities
exchange or the inclusion in any other market or quotation or trading system;
(18) any Trustee, Authenticating Agent, Paying
Agent, issuing or transfer agent or Securities Registrar or any other Person appointed to act in connection with such Securities for or
on behalf of the Holders thereof or the Company;
(19) any addition to or change in (a) the definition
of “Senior Debt” set forth in Section 1.01 or (b) any of the terms and provisions of Article XVI of this Indenture regarding
subordination, as the case may be, in each case that shall be applicable to the Securities of such series; and
(20) any other terms of the series (which terms
shall not be inconsistent with the provisions of this Indenture).
The Securities shall be subordinate in right of
payment to Senior Debt of the Company as provided in Article XVI.
All Securities of any one series shall be substantially
identical except as to denomination and except as may otherwise be provided in or pursuant to such Board Resolution and set forth in such
Officers’ Certificate, to the extent applicable, or in any such indenture supplemental hereto. All Securities of any one series
need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for
issuance of additional Securities of such series.
If any of the terms of the series are established
by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Board Resolution or the Officers’
Certificate setting forth the terms of the series.
Section 3.02 Denominations.
The Securities of each series shall be issuable
in registered form with or without coupons in such denominations as shall be specified as contemplated by Section 3.01. In the absence
of any such provisions with respect to the Securities of any series, the Securities of such series shall be issuable in denominations
of $1,000 and any integral multiple thereof.
Section 3.03 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the
Company by its Chairman of the Board, its Vice Chairman of the Board, its President or one of its Vice Presidents. The signature of any
of these officers on the Securities may be manual or facsimile.
Securities bearing the manual, facsimile or electronic
signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities.
At any time and from time to time after the execution
and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication,
and the Trustee shall authenticate and deliver such Securities upon Company Order. If all the Securities of any one series are not to
be originally issued at one time and if a Board Resolution relating to such Securities shall so permit, such Company Order may set forth
procedures (acceptable to the Trustee) for the issuance and authentication of such Securities.
If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as permitted by Section 2.01 and Section 3.01, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating:
(a) if the form of such Securities has been established
by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions
of this Indenture;
(b) if the terms of such Securities have been established
by or pursuant to Board Resolution as permitted by Section 3.01, that such terms have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, when authenticated and
delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights
and to general equity principles.
If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably
acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01
and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall not be necessary to
deliver the Board Resolution or Officers’ Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion
of Counsel otherwise required pursuant to this Section 3.03 at or prior to the time of authentication of each Security of such series
if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued
and such documents reasonably contemplate the issuance of all Securities of such series.
Unless otherwise provided in the form of Security
for any series, each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially
in the form provided for herein executed by the Trustee by manual, facsimile or electronic signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
If the Company shall establish pursuant to Section
3.01 that the Securities of a series are to be issued in the form of one or more Global Securities, then the Company shall execute and
the Trustee shall, in accordance with this Section and the Company Order with respect to such series, authenticate and deliver one or
more Global Securities that (i) shall represent and shall be denominated in an amount equal to the aggregate principal amount of all of
the Securities of such series having the same terms issued and not yet canceled, (ii) shall be registered in the name of the Depositary
for such Global Security or Securities or the nominee of such Depositary, (iii) shall be delivered by the Trustee to such Depositary or
pursuant to such Depositary’s instructions and (iv) shall bear a legend substantially to the following effect: “Unless and
until it is exchanged in whole or in part for Securities in definitive registered form, this Security may not be transferred except as
a whole by the Depositary to the nominee of the Depositary or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor Depositary.”
Section 3.04 Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which
are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor
of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine, as evidenced by their execution of such Securities. Every such temporary
Security shall be executed by the Company and shall be authenticated and delivered by the Trustee upon the same conditions and in substantially
the same manner, and with the same effect, as the definitive Security in lieu of which it is issued.
If temporary Securities of any series are issued,
the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon
surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without
charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series
of authorized denominations. Until so exchanged the temporary Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
Section 3.05 Registration, Registration of Transfer and Exchange
and Book-Entry Securities.
The Company shall cause to be kept at one of its
offices or agencies maintained pursuant to Section 10.02 a register (the register maintained in such office being herein sometimes referred
to as the “Security Register”) in which, subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of exchanges and transfers of Securities. The Person responsible for the maintenance of the Security Register
is referred to herein as the “Security Registrar.” The Trustee is hereby initially appointed Security Registrar for
the purpose of registering Securities and transfers of Securities as herein provided. The exchange of and the transfer of Securities also
may be registered at the office of the Trustee.
Upon surrender for registration of transfer of
any Security of any series at the office or agency in a Place of Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities of any
series (except Global Securities) may be exchanged for other Securities of the same series (except Global Securities) of any authorized
denominations and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of
transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt, and entitled to the same benefits
under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or such Holder’s
attorney duly authorized in writing.
No service charge shall be made for any registration
of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to
Section 3.04, Section 9.06, Section 11.06, Section 13.05 or Section 14.03 not involving any transfer.
The Company shall not be required (i) to issue,
register the transfer of or exchange Securities of any series during a period beginning at the opening of business 15 days before the
day of the mailing of a notice of redemption of Securities of that series selected for redemption under Section 11.02 and ending at the
close of business on the day of such mailing, or (ii) to register the transfer or exchange of any Security so selected for redemption
in whole or in part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding any other provision of this Section
3.05, unless and until it is exchanged in whole or in part for Securities in definitive registered form, a Global Security representing
all or a portion of the Securities of a series may not be transferred except as a whole by the Depositary for such series to a nominee
of such Depositary or by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for the Securities
of a series notifies the Company that it is unwilling or unable to continue as Depositary for the Securities of such series or if at any
time the Depositary for the Securities of a series shall no longer be registered or in good standing under the Securities Exchange Act
of 1934, as amended, or other applicable statute or regulation, the Company shall appoint a successor Depositary with respect to the Securities
of such series. If a successor Depositary for the Securities of such series is not appointed by the Company within 90 days after the Company
receives such notice or becomes aware of such condition, the Company shall execute, and the Trustee, upon receipt of a Company Order for
the authentication and delivery of definitive Securities of such series, shall authenticate and deliver Securities of such series in definitive
form in an aggregate principal amount equal to the principal amount of the Global Security or Securities representing such series in exchange
for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that the Securities of any series issued in the form of one or more Global Securities shall no longer be represented by a Global
Security or Securities. In such event the Company shall execute, and the Trustee, upon receipt of a Company Order for the authentication
and delivery of definitive Securities of such series, shall authenticate and deliver, Securities of such series in definitive registered
form without coupons, in any authorized denominations, in an aggregate principal amount equal to the principal amount of the Global Security
or Securities representing such series, in exchange for such Global Security or Securities.
If (1) an Event of Default shall occur and be continuing
and (2) beneficial owners of interests representing a majority in aggregate principal amount of the Securities of a series represented
by a Global Security or Securities shall advise the Trustee through the Depositary for such Global Security or Securities in writing that
the maintenance of a Depositary for such series is no longer in such beneficial owners’ best interests, the Company shall execute,
and the Trustee, upon receipt of a Company Order for the authentication and delivery of definitive Securities of such series, shall authenticate
and deliver, Securities of such series in definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the such Global Security or Securities, in exchange for such Global Security or Securities.
If specified by the Company pursuant to Section
3.01 with respect to a series of Securities, the Depositary for such series of Securities may surrender a Global Security for such series
of Securities in exchange in whole or in
part for Securities of such series in definitive registered form on such terms as are acceptable
to the Company and such Depositary. Thereupon, the Company shall execute, and the Trustee shall authenticate and deliver, without service
charge,
(i) to the Person specified by such Depositary
a new Security or Securities of the same series, of any authorized denomination as requested by such Person, in an aggregate principal
amount equal to and in exchange for such Person’s beneficial interest in the Global Security; and
(ii) to such Depositary a new Global Security in
a denomination equal to the difference, if any, between the principal amount of the surrendered Global Security and the aggregate principal
amount of Securities authenticated and delivered pursuant to Clause (i) above.
Upon the exchange of a Global Security for Securities
in definitive registered form, in authorized denominations, such Global Security shall be canceled by the Trustee. Securities in definitive
registered form issued in exchange for a Global Security pursuant to this Section 3.05 shall be registered in such names and in such authorized
denominations as the Depositary for such Global Security, pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall not be liable for any delay in delivery of such instructions and may conclusively rely on,
and shall be protected in relying on, such instructions. The Trustee shall, at Company expense, deliver such Securities to or as directed
by the Persons in whose names such Securities are so registered.
Section 3.06 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the
Trustee, together with such other security and/or indemnity as may be reasonably required by the Trustee to save it harmless, the Company
shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security and/or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security, subject to satisfaction of the foregoing conditions. Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and
shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities.
Section 3.07 Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by
Section 3.01 with respect to any series of Securities and subject to the deferral of any Interest Payment Dates in the case of an Extension
Period, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on
the Regular
Record Date for such interest. The Company and the Trustee understand that interest on any Global Security will be disbursed or credited
by the Depositary to the Persons having ownership thereof pursuant to a book entry or other system maintained by the Depositary.
Any interest on any Security of any series which
is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or Clause (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner.
The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series
and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of Securities of such series at such Holder’s
address as it appears in the Security Register, not less than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall be paid to the Persons
in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted
Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange
on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company
to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section,
each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall
carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
Section 3.08 Persons Deemed Owners.
The Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Section 3.07) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected
by notice to the contrary.
None of the Company, the Trustee, any Paying Agent
or the Security Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account
of beneficial ownership interests in a Global Security or for maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
Section 3.09 Cancellation.
Unless otherwise specified pursuant to Section
3.01(6) for Securities of any series all Securities surrendered for payment, redemption, registration of transfer or exchange or for credit
against any mandatory sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and
shall be promptly canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner whatsoever, and all Securities so delivered shall be promptly
canceled by the Trustee, except that if a Global Security is so surrendered, the Company shall execute and the Trustee shall authenticate
and deliver to the Depositary for such Global Security, without service charge, a new Global Security or Securities in a denomination
equal to and in exchange for the portion of the Global Security so surrendered not to be paid, redeemed, repaid or registered for transfer
or exchange or for credit. No Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this
Section, except as expressly permitted by this Indenture. All canceled Securities held by the Trustee shall be disposed of in accordance
with its customary procedures and a certificate of disposition shall be delivered to the Company upon its request therefor, unless, by
a Company Order, the Company shall direct the canceled Securities be returned to it.
Section 3.10 Computation of Interest.
Except as otherwise specified as contemplated by
Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year
of twelve 30-day months.
Section 3.11 CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP”
numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience
to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee in writing of any change in the “CUSIP” numbers.
Section 3.12 Deferrals of Interest Payments Dates.
If specified as contemplated by Section 2.01 or
Section 3.01 with respect to the Securities of a particular series, so long as no Event of Default has occurred and is continuing, the
Company shall have the right, at any time during the term of such series, from time to time to defer the payment of interest on such Securities
for such period or periods as may be specified as contemplated by Section 3.01 (each, an “Extension Period”) during which
Extension Periods the Company shall have the right to make partial payments of interest on any Interest Payment Date. No Extension Period
shall end on a date other than an Interest Payment Date or extend beyond the Stated Maturity. At the end of any such Extension Period
the Company shall pay all interest then accrued and unpaid on the Securities.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 4.01 Satisfaction and Discharge of Indenture.
Upon Company Request, this Indenture shall cease
to be of further effect, including the provisions of Article XVI, with respect to the Securities of a particular series, and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such
Securities, when:
(1) either:
(A) all Securities of such series theretofore authenticated
and delivered (other than (i) Securities which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 3.06 and (ii) Securities for whose payment money has theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee
for cancellation; or
(B) all Securities of such series not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one
year, under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense,
of the Company;
and
the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee
as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities (x) money in an amount, (y) U.S. Government Obligations which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due
date of any payment, money in an amount, or (z) a combination thereof, sufficient, without reinvestment of interest earned thereon, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge, and which shall be applied by the Trustee (or other qualifying trustee) to pay and discharge, the entire
indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest
to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date,
as the case may be; and
(2) the Company has paid or caused to be paid all
other sums payable hereunder by the Company with respect to such Securities; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture with respect to the Securities of such series have been complied with.
Notwithstanding the satisfaction and discharge
of this Indenture with respect to the Securities of a particular series, the obligations of the Company to the Trustee under Section 6.07,
the obligations, if any, of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03, in each case with respect to such Securities, shall survive such satisfaction and discharge.
Notwithstanding the cessation, termination and
discharge of all obligations, covenants and agreements of the Company under this Indenture with respect to any series of Securities, the
obligations of the Company to the Trustee under Section 6.07 and the obligations of the Trustee under Section 4.02 and the last paragraph
of Section 10.03 shall survive with respect to such series of Securities.
Section 4.02 Application of Trust Money.
Subject to the provisions of the last paragraph
of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent), as the Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any)
and interest for whose payment such money has been deposited with the Trustee.
ARTICLE V.
EVENTS OF DEFAULT; REMEDIES
Section 5.01 Events of Default.
Unless otherwise provided in a supplemental indenture
hereto, “Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of
law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1)
default in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default
for a period of 30 days (subject to the deferral of any Interest Payment Date in the case of an Extension Period) (regardless of
whether such payment is prohibited by the provisions of Article XVI hereof); or
(2) default in the payment of the principal of
(and premium, if any, on) any Security of that series at its Maturity (regardless of whether such payment is prohibited by the provisions
of Article XVI hereof); or
(3) default in the deposit of any mandatory sinking
fund payment, when and as due by the terms of the Securities of that series, and continuance of such default for a period of 30 days;
or
(4) default in the performance of any covenant
or warranty of the Company in this Indenture (other than a covenant or warranty a default in whose performance or whose breach is elsewhere
in this Section 5.01 specifically dealt with or which has expressly been included in this Indenture solely for the benefit of a series
of Securities other than that series), and continuance of such default for a period of 90 days (unless the Company during such period
shall have performed such covenant or warranty, or if such covenant or warranty cannot reasonably have been performed during such period,
then the Company shall have commenced and be diligently pursuing such performance) after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least a majority in aggregate principal amount
of the Outstanding Securities of that series, a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(5) the entry of a decree or order for relief in
respect of the Company by a court having jurisdiction in the premises in an involuntary case under the federal bankruptcy laws, as now
or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency or other similar law, or a decree or order adjudging
the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition
of or in respect of the Company under any applicable federal or state law, or appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or other similar official) of the Company or of any substantial part of its property, or ordering the winding up
or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 90 consecutive days;
or
(6) the commencement by the Company of a voluntary
case under the federal bankruptcy laws, as now or hereafter constituted, or any other applicable federal or state bankruptcy, insolvency
or other similar law, or the consent by it to the entry of an order for relief in an involuntary case under any such law or to the appointment
of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit of its creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action.
Upon receipt by the Trustee of any proposed Notice
of Default from any Holder with respect to Securities of a series all or part of which is represented by a Global Security, a record date
shall be established for determining Holders of Outstanding Securities of such series entitled to join in such proposed Notice of Default,
which record date shall be at the close of business on the day the Trustee receives such proposed Notice of Default. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such proposed Notice of Default, whether
or not such Holders remain Holders after such record date; provided, that
unless Holders of at least a majority in principal amount of
the Outstanding Securities of such series, or their proxies, shall have joined in such proposed Notice of Default prior to the day which
is 90 days after such record date, such proposed Notice of Default shall automatically and without further action by any Holder be canceled
and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving (i) after expiration of
such 90-day period, a new proposed Notice of Default identical to a proposed Notice of Default which has been canceled pursuant to the
proviso to the preceding sentence, or (ii) during any such 90-day period, an additional proposed Notice of Default with respect to any
new or different fact or circumstance permitting the giving of a proposed Notice of Default with respect to Securities of such series,
in either of which events a new record date shall be established pursuant to the provisions of this Section 5.01. Any such proposed Notice
of Default shall be considered a Notice of Default hereunder at such time, if any, that Holders of at least a majority in principal amount
of the Outstanding Securities shall have joined in such proposed Notice of Default by giving timely notice to the Trustee hereunder.
Section 5.02 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any series (other than an Event of Default specified in Section 5.01(5) or Section 5.01(6)) at the time Outstanding occurs and is continuing,
then in every such case, the Trustee or the Holders of not less than a majority in principal amount of the Outstanding Securities of that
series may declare the principal amount (or, if any of the Securities of that series are Original Issue Discount Securities, such portion
of the principal amount of such Securities as may be specified in the terms thereof) of all of the Securities of that series to be due
and payable immediately, by a notice in writing to the Company (and to the Trustee if given by Holders), and upon any such declaration
such principal amount (or specified amount) shall become immediately due and payable. Upon payment of said amounts, all obligations of
the Company in respect of payment of principal of the Securities of such series shall terminate. Notwithstanding the foregoing, if an
Event of Default specified in Section 5.01(5) or Section 5.01(6) hereof occurs with respect to the Company, all Outstanding Securities
shall become immediately due and payable without further action or notice.
At any time after such a declaration of acceleration
with respect to Securities of any series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Event of Default giving rise to such declaration of acceleration shall, without
further act, be deemed to have been waived, and such declaration and its consequences shall, without further act, be deemed to have been
rescinded and annulled such declaration and its consequences if:
(1) the Company has paid or deposited with the
Trustee a sum sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on)
any Securities of that series which have become due otherwise than by such declaration of acceleration and any interest thereon at the
rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest
is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities
of that series, other than the non-payment of the principal of Securities of that series which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent
default or impair any right consequent thereon.
Upon receipt by the Trustee of written notice declaring
such an acceleration, or rescission and annulment thereof, with respect to Securities of a series all or part of which is represented
by a Global Security, a record date shall be established for determining Holders of Outstanding Securities of such series entitled to
join in such notice, which record date shall be at the close of business on the day the Trustee receives such notice. The Holders on such
record date, or their duly designated proxies, and only such Persons, shall be entitled to join in such notice, whether or not such Holders
remain Holders after such record date; provided, that unless such declaration of acceleration, or rescission and annulment, as the case
may be, shall have become effective by virtue of the requisite percentage having joined in such notice prior to the day which is 90 days
after such record date, such notice of declaration of acceleration, or rescission and annulment, as the case may be, shall automatically
and without further action by any Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a
proxy of a Holder, from giving (i) after expiration of such 90-day period, a new written notice of declaration of acceleration, or rescission
and annulment, as the case may be, that is identical to a written notice which has been canceled pursuant to the proviso to the preceding
sentence, or (ii) during any such 90-day period, an additional written notice of declaration of acceleration with respect to Securities
of such series, or an additional written notice of rescission and annulment of any declaration of acceleration with respect to any other
Event of Default with respect to Securities of such series, in either of which events a new record date shall be established pursuant
to the provisions of this Section 5.02.
Section 5.03 Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest
upon any Security when it becomes due and payable and such default continues for a period of 30 days (subject to the deferral of any Interest
Payment Date in the case of an Extension Period) (regardless of whether such payment is prohibited by the provisions of Article XVI hereof),
or
(2) default is made in the payment of the principal
of (or premium, if any, on) any Security at its Maturity (regardless of whether such payment is prohibited by the provisions of Article
XVI hereof), or
(3) default is made in the making or satisfaction
of any mandatory sinking fund payment when it becomes due pursuant to the terms of the Securities of any series and such default continues
for a period of 30 days,
the Company will, upon demand of the Trustee, pay
to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal (and
premium, if any) and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
(and premium, if any) and on any overdue interest, at the rate or rates prescribed therefor in such Securities and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith
upon such demand, the Trustee, in its own name and as trustee of an express trust, may, but shall not be obligated to, institute a judicial
proceeding for the collection of the sums so due and unpaid, may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon such Securities and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor upon such Securities, wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of
the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect
and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise
of any power granted herein, or to enforce any other proper remedy.
Section 5.04 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to
the Company (or any other obligor upon the Securities), its property or its creditors, the Trustee shall be entitled and empowered, by
intervention in such proceeding or otherwise, to take any and all actions authorized under the Trust Indenture Act in order to have claims
of the Holders and the Trustee allowed in any such proceeding. In particular, the Trustee shall be authorized to file and prove a claim
for the whole amount of principal, premium and interest owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and
to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect
of the claim of any Holder in any such proceeding.
Section 5.05 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 5.06 Application of Money Collected.
Any money collected by the Trustee pursuant to
this Article with respect to the Securities of any series shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium, if any) or interest, upon presentation of the Securities
of any series and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee
in each of its capacities under the Indenture under Section 6.07;
SECOND: Subject to the provisions of Article XVI,
to the payment of the amounts then due and unpaid for principal of (and premium, if any) and interest on the Securities of such series
in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities for principal (and premium, if any) and interest, respectively; and
THIRD: The balance, if any, to the Company or as
a court of competent jurisdiction may direct.
Section 5.07 Limitation on Suits.
No Holder of any Security of any series shall have
any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment of a receiver or
trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice
to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the Holders of not less than a majority in
principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings
in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the
Trustee security and/or indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred in compliance
with such request;
(4) the Trustee for 60 days after its receipt of
such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written
request has been given to the Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities
of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or of the Holders of Outstanding Securities of any other series, or to obtain or to seek to obtain
priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided
and for the equal and ratable benefit of all of such Holders.
Section 5.08 Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of (and premium,
if any) and (subject to Section 3.07) interest on such Security on the Stated Maturity or Maturities expressed in such Security (or, in
the case of redemption or repayment at the option of the Holder, on the Redemption Date or the Repayment Date, as the case may be) and
to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
Section 5.09 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any
proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding,
the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right
and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now
or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder
of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute
a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Trustee
or to the
Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the
case may be.
Section 5.12 Control by Holders.
The Holders of at least a majority in principal
amount of the Outstanding Securities of any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of
such series, provided that
(1) such direction shall not be in conflict with
any rule of law or with this Indenture, expose the Trustee to personal liability or be unduly prejudicial to Holders not joining therein,
and
(2) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Upon receipt by the Trustee of any such direction
with respect to Securities of a series all or part of which is represented by a Global Security, a record date shall be established for
determining Holders of Outstanding Securities of such series entitled to join in such direction, which record date shall be determined
in accordance with Section 1.04(e). The Holders on such record date, or their duly designated proxies, and only such Persons, shall be
entitled to join in such direction, whether or not such Holders remain Holders after such record date; provided, that unless Holders of
at least a majority in principal amount of the outstanding Securities of such series, or their proxies, shall have been joined in such
direction prior to the day which is 90 days after such record date, such direction shall automatically and without further action by any
Holder be canceled and of no further effect. Nothing in this paragraph shall prevent a Holder, or a proxy of a Holder, from giving (i)
after expiration of such 90-day period, a new direction identical to a direction which has been canceled pursuant to the provisions of
the preceding sentence or (ii) during any such 90-day period, a new direction contrary to or different from such direction, in either
of which events a new record date shall be established pursuant to the provisions of this Section 5.12.
Section 5.13 Waiver of Defaults.
By Act delivered to the Company and the Trustee,
the Holders of not less than a majority in principal amount of the Outstanding Securities of any affected series may on behalf of the
Holders of all the Securities of such series waive any existing Event of Default hereunder with respect to such series and its consequences
(including an acceleration and its consequences, including any related payment default that resulted from such acceleration), except an
Event of Default
(1) in the payment of the principal of (or premium,
if any) or interest on any Security of such series or in the payment of any mandatory sinking fund installment with respect to the Securities
of such series, or
(2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected
thereby.
The Company may, but shall not be obligated to,
fix a record date for the purpose of determining the Persons entitled to waive any past default hereunder. If a record date is fixed,
the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to waive any default hereunder,
whether or not such Holders remain Holders after such record date; provided, that unless such majority in principal amount shall have
been obtained prior to the date which is 90 days after such record date, any such waiver previously given shall automatically and without
further action by any Holder be canceled and of no further effect.
Upon any such waiver, such default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may
require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party
litigant, including reasonable attorneys’ fees and expenses, in the manner and to the extent provided in the Trust Indenture Act;
provided that neither this Section nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or
to make such an assessment in any suit instituted by the Trustee, by any Holder, or group of Holders, holding in the aggregate more than
10% in principal amount of the Outstanding Securities of any series, or by any Holder for the enforcement of the payment of the principal
of (or premium, if any) or interest on any Security on or after the Stated Maturity expressed in such Security (or, in the case of redemption
or repayment at the option of the Holder, on or after the Redemption Date or Repayment Date, as the case may be).
Section 5.15 Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
ARTICLE VI.
THE TRUSTEE
Section 6.01 Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of
Default:
(1) the Trustee undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates
or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such certificates or
opinions which by any provision of this Indenture are specifically required to be furnished to the Trustee, the Trustee shall be under
a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate
the accuracy of any mathematical calculations or other facts stated therein).
(b) In case an Event of Default has occurred and
is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture and use the same degree of care
and skill in their exercise, as a prudent individual would exercise or use under the circumstances in the conduct of such individual’s
own affairs.
(c) No provision of this Indenture shall be construed
to relieve the Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except
that:
(1) this Subsection shall not be construed to limit
the effect of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer, unless it shall be proved that the Trustee was negligent in ascertaining the
pertinent facts;
(3) the Trustee shall not be liable with respect
to any action taken or omitted to be taken by it in good faith in accordance with the direction of the Holders of a majority in principal
amount of the Outstanding Securities of any series relating to the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture; and
(4) no provision of this Indenture shall require
the Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
(d) Whether or not therein expressly so provided,
every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 6.02 Notice of Defaults.
Within 90 days after the occurrence of any default
hereunder with respect to Securities of any series, the Trustee shall transmit by mail to all Holders of Securities of such series, as
their names and addresses appear in the Security Register, notice of such default hereunder known to the Trustee, unless such default
shall have been cured or waived; provided, however, that, except in the case of a default in the payment of the principal, premium or
interest on any Security of such series or in the payment of any mandatory sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee
of the board of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such notice is in
the interests of the Holders of the Securities of such series; and provided, further, that in the case of any default of the character
specified in Section 5.01(4) with respect to the Securities of such series no such notice to Holders shall be given until at least 60
days after the occurrence thereof. For the purpose of this Section, the term “default” means any event which is, or
after notice or lapse of time or both would become, an Event of Default.
Section 6.03 Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(a) the Trustee may conclusively rely and shall
be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture
the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder,
the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, rely upon an Officers’
Certificate;
(d) the Trustee may consult with counsel and the
advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee security and/or indemnity reasonably satisfactory to it against the costs,
expenses and liabilities which might be incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document, but the Trustee, in its discretion,
may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder;
(h) the Trustee shall not be required to take notice
or be deemed to have notice of any default hereunder (except failure by the Company to pay principal of (or premium, if any) or interest
on any series of Securities so long as the Trustee is also acting as Paying Agent for such series of Securities) unless the Trustee shall
be specifically notified in writing of such default by the Company or by the Holders of at least a 10% in aggregate principal amount of
all Outstanding Securities, and all such notices or other instruments required by this Indenture to be delivered to the Trustee must,
in order to be effective, be delivered at the principal Corporate Trust Office of the Trustee, and in the absence of such notice the Trustee
may conclusively assume there is no default except as aforesaid;
(i) the Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or
powers conferred upon it by this Indenture;
(j) in no event shall the Trustee be responsible
or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss
of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of
action; and
(k) the rights, privileges, protections, immunities
and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed by the Trustee to act hereunder
pursuant to the terms of this Indenture.
Section 6.04 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities,
except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and the Trustee or any Authenticating
Agent assumes no responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company
of Securities or the proceeds thereof. The Trustee shall not be deemed to have knowledge of the identity of any Subsidiary unless either
(A) a Responsible Officer of the Trustee shall have actual knowledge thereof or (B) the Trustee shall have received written notice thereof
from the Company or any Holder.
Section 6.05 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying
Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee
of Securities and, subject to Section 6.08 and Section 6.13, may otherwise deal with the Company with the same rights it would have if
it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.06 Money Held in Trust.
Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money
received by it hereunder except as otherwise agreed with the Company.
Section 6.07 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for the Trustee’s services rendered hereunder (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein,
to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to the Trustee’s own negligence or willful misconduct; and
(3) to indemnify the Trustee for, and to hold it
harmless against, in each case to the extent permitted by law, any charge, loss, claim, damage, liability or expense incurred without
negligence or willful misconduct on the Trustee’s part, arising out of or in connection with the acceptance or administration of
the trust or trusts hereunder, including the Trustee’s costs and expenses of defending itself against any claim or liability in
connection with the exercise or performance of any of the Trustee’s powers or duties hereunder including the costs and expenses
of defending itself against any claim (whether asserted by the Company, or any Holder or any other Person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, or in connection with enforcing the provisions of this Section,
except to the extent that such charge loss, damage, claim, liability or expense is due to its own negligence or willful misconduct.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a lien prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the benefit of the Holders of particular Securities.
The benefits of this Section shall survive the
termination of this Indenture and the resignation or removal of the Trustee.
Section 6.08 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of Section 3.10 of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent
permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest with respect to the Securities of
any series by virtue of being Trustee with respect to the Securities of any particular series of Securities except as may be otherwise
provided by the terms of the Securities of that series.
Section 6.09 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of
at least $50,000,000. If such Person publishes reports of condition at least annually, pursuant to law or to the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and
no appointment of a successor Trustee pursuant to this Article shall become effective until the acceptance of appointment by the successor
Trustee in accordance with the applicable requirements of Section 6.11.
(b) The Trustee may resign at any time with respect
to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.11 shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the
resigning Trustee may at the expense of the Company petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with
respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such
series, delivered to the Trustee and to the Company. If the instrument of acceptance by a successor Trustee required by Section 6.11 shall
not have been delivered to the Trustee within 60 days after the removal of Trustee, the removed Trustee may at the expense of the Company
petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months,
or
(2) the Trustee shall cease to be eligible under
Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer
shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company may remove the Trustee with respect to any or all Securities, or (ii) subject to Section 5.14,
any Holder who has been a bona fide Holder of a Security for at least six months may, on behalf of themselves and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to any or all Securities and the appointment
of a successor Trustee or Trustees with respect to such series.
(e) If the Trustee shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one
or more series, the Company shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series
and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the
applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of that or those series shall be appointed by Act of the Holders of a majority
in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee
so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed
by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the
Holders and accepted appointment in the manner required by Section 6.11, any Holder who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of themselves and all others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
(f) The Company shall give notice of each resignation
and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect
to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice of appointment
shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor
Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder, subject nevertheless to its lien, if any, provided for in Section 6.07.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities
of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect
to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall
be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee;
and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective
to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee,
the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment
unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged
or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall
be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without
the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had
itself authenticated such Securities. In case any Securities shall not have been authenticated by such predecessor Trustee, any such successor
Trustee may authenticate and deliver such Securities, in either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of the Trustee.
Section 6.13 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor
of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of Section 3.11 of the Trust
Indenture Act regarding the collection of such claims against the Company (or any such other obligor). A Trustee that has resigned or
been removed shall be subject to and comply with said Section 3.11 to the extent required thereby.
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities (which may be an Affiliate of the Company) which shall be authorized to act
on behalf of the Trustee to authenticate Securities issued upon registration of transfer or partial redemption or repayment thereof or
pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a corporation
organized and doing business and in good standing under the laws of the United States, any State or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital and surplus of no less than $50,000,000 and subject to supervision
or examination by Federal or State authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then for the purposes of this Section, the combined capital
and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report
of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business
of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such corporation shall be otherwise eligible under
this Section, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may resign at any time by giving written notice thereof to the Trustee for such series
and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent for such
series by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions
of this Section, the Trustee of such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and
shall mail written notice of such appointment by first-class mail, postage prepaid, to all Holders of Securities of the series with respect
to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
Except with respect to an Authenticating Agent
appointed at the request of the Company, the Trustee agrees to pay to each Authenticating Agent from time to time reasonable compensation
for its services under this Section, and the Trustee shall be entitled to be reimbursed for such payments, pursuant to the provisions
of Section 6.07.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate
of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series described
therein referred to in the within-mentioned Indenture.
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as Trustee |
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By: |
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As Authenticating Agent |
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Authorized Officer |
ARTICLE VII.
HOLDERS’ LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 7.01 Company to Furnish Trustee Names and Addresses of Holders.
With respect to each series of Securities, the
Company will furnish or cause to be furnished to the Trustee for the Securities of such Series
(a) semiannually, not more than 15 days after each
Regular Record Date relating to that series (or, if there is no Regular Record Date relating to that series, on June 30 and December 31),
a list, in such form as such Trustee may reasonably require, of the names and addresses of the Holders of that series as of such date,
and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that if and so long as the Trustee is Security Registrar with
respect to Securities of a particular series no such list shall be required with respect to the Securities of such series.
Section 7.02 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a
form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided
in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee may
destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and
holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any agent of either of them shall
be held accountable by reason of the disclosure of information as to the names and addresses of the Holders made pursuant to the Trust
Indenture Act.
Section 7.03 Reports by Trustee.
(a) Within 60 days after May 15 of each year
commencing with the year , the Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this
Indenture as may be required pursuant to the Trust Indenture Act if and to the extent and in the manner provided pursuant
thereto.
(b) A copy of each such report shall, at the time
of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission
and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange.
Section 7.04 Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be required pursuant
to the Trust Indenture Act in the manner provided pursuant to the Trust Indenture Act; provided that any such information, documents or
reports required to be filed with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934, as amended,
shall be filed with the Trustee within 15 days after the same is filed with the Commission. Delivery of such reports to the Trustee is
for informational purposes only and the Trustee’s receipt of such reports shall not constitute actual or constructive notice or
knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 7.05 Holders’ Meetings.
(a) A meeting of Holders of any or all series may
be called at any time and from time to time pursuant to the provisions of this Section 7.05 for any of the following purposes:
(1) to give any notice to the Company or to the
Trustee for such series, or to give any directions to the Trustee for such series, or to consent to the waiving of any default hereunder
and its consequences, or to take any other action authorized to be taken by Holders pursuant to any of the provisions of Article V;
(2) to remove the Trustee for such series and appoint
a successor Trustee pursuant to the provisions of Article VI;
(3) to consent to the execution of an indenture
or supplemental indentures hereto pursuant to the provisions of Section 9.02; and
(4) to take any other action authorized to be taken
by or on behalf of the Holders of any specified aggregate principal amount of the Outstanding Securities of any one or more or all series,
as the case may be, under any other provision of this Indenture or under applicable law.
(b) The Trustee for any series may at any time
call a meeting of Holders of such series to take any action specified in paragraph (a) of this Section 7.05, to be held at such time or
times and at such place or places as the Trustee for such series shall determine. Notice of every meeting of the Holders of any series,
setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such meeting, shall be given
to Holders of such series in the manner and to the extent provided in Section 1.05. Such notice shall be given not less than 20 days nor
more than 90 days prior to the date fixed for the meeting.
(c) In case at any time the Company, or the Holders
of at least 10% in aggregate principal amount of the Outstanding Securities of a series or of all series, as the case may be, shall have
requested the Trustee for such series to call a meeting of Holders of any or all such series by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall not have given the notice of such meeting within 20 days
after the receipt of such request, then the Company or such Holders may determine the time or times and the place or places for such meetings
and may call such meetings to take any action authorized by giving notice thereof as provided in the preceding paragraph.
(d) To be entitled to vote at any meeting of Holders
a Person shall be (a) a Holder of a Security of the series with respect to which such meeting is being held or (b) a Person appointed
by an instrument in writing as agent or proxy by such Holder. The only Persons who shall be entitled to be present or to speak at any
meeting of Holders shall be the Persons entitled to vote at such meeting and their counsel and any representatives of the Trustee for
the
series with respect to which such meeting is being held and its counsel and any representatives of the Company and its counsel.
(e) Notwithstanding any other provisions of this
Indenture, the Trustee for any series may make such reasonable regulations as it may deem advisable for any meeting of Holders of such
series, in regard to proof of the holding of Securities of such series and of the appointment of proxies, and in regard to the appointment
and duties of inspectors of votes, the submission and examination of proxies, certificates and other evidence of the right to vote, and
such other matters concerning the conduct of the meeting as it shall deem appropriate.
The Trustee shall, by an instrument in writing,
appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by Holders of such series as
provided in paragraph (c) of this Section 7.05, in which case the Company or the Holders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by a majority
vote of the meeting.
Subject to the provisos in the definition of “Outstanding,”
at any meeting each Holder of a Debt Security of the series with respect to which such meeting is being held or proxy therefor shall be
entitled to one vote for each $1,000 principal amount (or such other amount as shall be specified as contemplated by Section 3.01) of
Securities of such series held or represented by him; provided, however, that no vote shall be cast or counted at any meeting in respect
of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting
shall have no right to vote other than by virtue of Outstanding Securities of such series held by such chairman or instruments in writing
duly designating the chairman as the person to vote on behalf of Holders of Securities of such series. Any meeting of Holders with respect
to which a meeting was duly called pursuant to the provisions of paragraph (b) or (c) of this Section 7.05 may be adjourned from time
to time by a majority of such Holders present and the meeting may be held as so adjourned without further notice.
(f) The vote upon any resolution submitted to any
meeting of Holders with respect to which such meeting is being held shall be by written ballots on which shall be subscribed the signatures
of such Holders or of their representatives by proxy and the serial number or numbers of the Securities held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes cast
at the meeting. A record in duplicate of the proceedings of each meeting of Holders shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the inspectors of votes on any vote by ballot taken thereat and affidavits
by one or more persons having knowledge of the facts setting forth a copy of the notice of the meeting and showing that said notice was
transmitted as provided in paragraph (b) of this Section 7.05. The record shall show the serial numbers of the Securities voting in favor
of or against any resolution. The record shall be signed and verified by the affidavits of the permanent chairman and secretary of the
meeting and one of the duplicates shall be delivered to the Company and the other to the Trustee to be preserved by the Trustee.
Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
(g) Nothing contained in this Section 7.05 shall
be deemed or construed to authorize or permit, by reason of any call of a meeting of Holders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right or rights conferred upon or reserved to the Trustee or
to any Holder under any of the provisions of this Indenture or of the Securities of any series.
ARTICLE VIII.
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
Section 8.01 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge
with or into any other Person or convey, transfer or lease all or substantially all of its property or assets to any Person unless:
(1) in case the Company shall consolidate with
or merge into another Person or convey, transfer or lease all or substantially all of its property or assets to any Person, the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by conveyance or transfer, or which leases,
the properties and assets of the Company shall be either the Company or a corporation or limited liability company, shall be organized
and validly existing under the laws of the United States, any State thereof or the District of Columbia and shall expressly assume, by
an indenture supplemental hereto executed and delivered to the Trustee, all obligations hereunder, including the due and punctual payment
of the principal of and any premium and interest on all the Securities and the performance or observance of every covenant of this Indenture
on the part of the Company to be performed or observed;
(2) after giving effect to such transaction, no
Event of Default shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an
Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent herein relating to such consolidation,
conveyance or merger have been satisfied and that after giving effect to such transaction, no Event of Default shall have occurred and
be continuing.
Notwithstanding the foregoing, any Subsidiary of
the Company may consolidate with, merge into or transfer all or part of its properties and assets to the Company.
Section 8.02 Successor Substituted.
Upon any consolidation of the Company with, or
merger of the Company into, any other Person or conveyance, transfer or lease of all or substantially all of the property or assets of
the Company in accordance with Section 8.01, the successor Person formed by such consolidation or into which the Company is merged or
to which conveyance, transfer or lease of all or substantially all of its property or assets is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had
been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities. In the case of a lease, the predecessor Person shall not be released from its obligations
to pay the principal of, premium, if any, and interest on the Securities. All Securities issued by the successor Person shall in all respects
have the same legal priority as the Securities theretofore or thereafter authenticated, issued and delivered in accordance with the terms
of this Indenture.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 9.01 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company
and the Trustee, at any time and from time to time, may amend the Securities of a series or enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to make such provision in regard to matters
or questions arising under this Indenture as may be necessary or desirable and not inconsistent with this Indenture or for the purpose
of supplying any omission, curing any ambiguity, or curing, correcting or supplementing any defective or inconsistent provision, provided
that such provision shall not adversely affect the interests of Holders of Outstanding Securities created prior to the execution of such
supplemental indenture in any material respect; or
(2) to change or eliminate any of the provisions
of this Indenture, provided that any such change or elimination shall become effective only when there is no Outstanding Security of any
series created prior to the execution of such supplemental indenture which is entitled to the benefit of such provision; or
(3) to secure the Securities; or
(4) to establish the form of Securities of any
series as permitted by Section 2.01 and Section 3.01; or
(5) to evidence the succession of another Person
to the Company, and the assumption by any such successor of the covenants of the Company herein and in the Securities; or
(6) to grant to or confer upon the Trustee for
the benefit of the Holders any additional rights, remedies, powers or authority; or
(7) to permit the Trustee to comply with any duties
imposed upon it by law; or
(8) to specify further the duties and responsibilities
of, and to define further the relationships among, the Trustee, any Authenticating Agent and any Paying Agent; or
(9) to add to the covenants of the Company for
the benefit of the Holders of all or any series of Securities (and if such covenants are to be for the benefit of less than all series
of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender a right
or power conferred on the Company herein; or
(10) to add any additional Events of Default (and
if such Events of Default are to be applicable to less than all series of Securities, stating that such Events of Default are expressly
being included for the benefit of such series).
Section 9.02 Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than
a majority in principal amount of the Outstanding Securities of each series affected by such supplemental indenture, by Act of such Holders
delivered to the Company and the Trustee, the Company and the Trustee may enter into an indenture or indentures supplemental hereto for
the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental
indenture shall:
(1) change the Stated Maturity of any Security;
or reduce the rate of interest on any Security; or change the method of calculating interest, or any term used in the calculation of interest,
or the period for which interest is payable, on any Security; or reduce the principal amount of any Security or any premium thereon; or
reduce the payment of any mandatory sinking fund or analogous obligation; or reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of acceleration of the Maturity thereof; or adversely affect the right of repayment
or renewal, if any, at the option of the Holders; or change the coin or currency in which the principal of any Security or any premium
or interest thereon is payable; or change the date on which any Security may be redeemed; or adversely affect the rights of any Holding
to institute suit for the enforcement of any payment of principal of or any premium or interest on any Security, in each case without
the consent of the Holder of each Outstanding Security that would be affected thereby (for purposes of this Section 9.02(1) only, the
term “Security” shall include Securities for which an offer to purchase has been accepted by the Company); or
(2) reduce the aforesaid percentage of Securities,
the Holders of which are required to consent to any such supplemental indenture, or the percentage in aggregate principal amount of the
Outstanding Securities the consent of the Holders of which is required for any waiver of certain past defaults or Events of Default hereunder
or the consequences thereof, in each case without the consent of the Holders of all of the Outstanding Securities.
In addition, any amendment to, or waiver of, the
provisions of this Indenture relating to subordination, include Article XVI, that adversely affects the rights of the Holders of the Outstanding
Securities shall require the consent of the Holders of at least 75% in aggregate principal amount of Outstanding Securities.
A supplemental indenture which changes or eliminates
any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series
of Securities, or which modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders
under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall
approve the substance thereof.
Section 9.03 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts
created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created by this Indenture,
the Trustee shall be provided with, and (subject to Section 6.01) shall be fully protected in relying upon, an Officers’ Certificate
and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section 9.04 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
Section 9.05 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06 Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered
after the execution of any supplemental indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 9.07 Notice of Supplemental Indenture.
Promptly after the execution by the Company and
the appropriate Trustee of any supplemental indenture, the Company shall transmit, as provided herein, to all Holders of any series of
the Securities affected thereby, a notice setting forth in general terms the substance of such supplemental indenture.
Section 9.08 Subordination Unimpaired.
No supplemental indenture executed pursuant to
this Article shall directly or indirectly modify the provisions of Article XVI in any manner which might alter the subordination of the
Securities.
ARTICLE X.
COVENANTS
Section 10.01 Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit
of each series of Securities that it will duly and punctually pay the principal of (and premium, if any) and interest on the Securities
of that series in accordance with the terms of the Securities and this Indenture.
Section 10.02 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment
an office or agency where Securities may be presented or surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency.
If at any time the Company terminates the appointment of a Paying Agent or Security Registrar or otherwise shall fail to maintain any
such required office or agency, the Company shall use its reasonable best efforts to appoint a successor Paying Agent or Security Registrar
reasonably acceptable to the Trustee. If the Company fails to maintain a Paying Agent or Security Registrar, the Trustee will act as such,
and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Securities may be presented or surrendered for any or all such purposes and may from time
to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of
its obligation to maintain an office or agency in each Place of Payment for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Section 10.03 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own
Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of (and premium, if any) or
interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient
to pay the principal (and premium, if any) or interest so becoming due until such sums shall be paid to such Persons or otherwise disposed
of as herein provided and will promptly notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities, it will, prior to each due date of the principal of (and premium, if any) or interest on any Securities
of that series, deposit with a Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such
sum to be held in trust for the benefit of the Persons entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent for any
series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of
the principal of (and premium, if any) or interest on Securities of that series in trust for the benefit of the Persons entitled thereto
until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default
by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any)
or interest on the Securities of that series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of
obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent
to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts
as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying
Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest on any Security of
any series and remaining unclaimed for two years after such principal (and premium, if any) or interest has become due and payable shall
be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee
or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 10.04 Corporate Existence.
Subject to Article VIII, the Company will do or
cause to be done all things necessary to preserve and keep in full force and effect its corporate existence, rights (charter and statutory)
and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 10.05 Statement as to Default.
(1) The Company will deliver to the Trustee, within
120 days after the end of each fiscal year of the Company ending after the date hereof, a certificate, signed by the principal executive
officer, principal financial officer or principal accounting officer of the Company, stating whether or not to the best knowledge of the
signer thereof the Company is in default in the performance and observance of any of the terms, provisions and conditions of this Indenture
(without regard to any period of grace or requirement of notice provided hereunder) and, if the Company shall be in default, specifying
all such defaults and the nature and status thereof of which they may have knowledge.
(2) The Company will give to the Trustee written
notice of the occurrence of an Event of Default within five days after the Company becomes aware of such occurrence.
Section 10.06 Waiver of Certain Covenants.
The Company may omit in any particular instance
to comply with any term, provision or condition set forth in Section 8.01 with respect to the Securities of any series if, before the
time for such compliance, the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by
Act of such Holders, either waive compliance in such instance or generally waive compliance with such term, provision or condition, but
no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver
shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 11.01 Applicability of Article.
Securities of any series which are redeemable before
their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated in Section
3.01 for Securities of any series) in accordance with this Article.
Section 11.02 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
shall be evidenced by a Board Resolution. In case of any redemption at the election of the Company of less than all the Securities of
any series, the Company shall, at
least 10 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and,
if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers’ Certificate evidencing compliance with such restriction.
Section 11.03 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are
to be redeemed (unless all of the Securities of such series and of a specified tenor are to be redeemed), the particular Securities to
be redeemed shall be selected not more than 60 days prior to the Redemption Date, from the Outstanding Securities of such series not previously
called for redemption, by lot, which may provide for the selection for redemption of portions (equal to the minimum authorized denomination
for Securities of that series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series; provided that in any case where the Securities are in the
form of Global Securities, the Securities to be redeemed shall be selected in accordance with the policies and procedures of the Depositary.
If the Company shall so specify and identify the appropriate Securities, Securities owned of record and beneficially by the Company or
any Subsidiary shall not be included in the Securities selected for redemption.
For all purposes of this Indenture, unless the
context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed
or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 11.04 Notice of Redemption.
Notice of redemption shall, unless otherwise specified
by the terms of the Securities to be redeemed, be given not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder
of Securities to be redeemed, in accordance with Section 1.06.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price (or if not then ascertainable,
the manner of calculation thereof);
(3) the place or places where such Securities are
to be surrendered for payment of the Redemption Price, which shall be the office or agency of the Company in each Place of Payment;
(4) that payment of the Redemption Price will be
made on the surrender of such Securities at such place or places of redemption;
(5) that accrued interest to the Redemption Date
will be paid as specified in such notice and that from and after the Redemption Date interest on such Securities will cease to accrue;
(6) if less than all the Outstanding Securities
of any series are to be redeemed (unless all the Securities of such series of a specified tenor are to be redeemed), the identification
(and, in the case of partial redemption of any Securities, the principal amounts) of the particular Securities to be redeemed;
(7) in the case of partial redemption of any Securities,
that upon surrender of such Securities, a new Security or new Securities having the same terms will be issued in aggregate principal amount
equal to the unredeemed portion;
(8) that redemption is subject to the receipt by
the Trustee or a Paying Agent prior to the Redemption Date of sufficient funds to make the redemption, if such is the case; and
(9) that the redemption is for a sinking fund,
if such is the case.
Notice of redemption of Securities to be redeemed
at the election of the Company shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the
expense of the Company.
Section 11.05 Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.03) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to be redeemed on that date.
Section 11.06 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid,
the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities
shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however, that, unless otherwise
specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be
payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant
Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not
be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 11.07 Securities Redeemed in Part.
Any Security which is to be redeemed only in part
shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security
so surrendered. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
ARTICLE XII.
SINKING FUNDS
Section 12.01 Applicability of Article.
The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section 3.01 for Securities
of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any
payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any sinking fund payment may
be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
Section 12.02 Satisfaction of Mandatory Sinking Fund Payments with
Securities.
The Company (1) may deliver Outstanding Securities
of a series to the Trustee for cancellation (other than any previously called for redemption) and (2) may apply as a credit Securities
of a series which have been redeemed either at the election of the Company or the Holders, if applicable, pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case
in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of such series required to be
made pursuant to the terms of such Securities as provided for by the terms of such series or may apply Securities of such series which
have been previously cancelled; provided that such Securities have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for redemption through operation of
such mandatory sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 12.03 Redemption of Securities for Mandatory Sinking Fund.
Not less than 60 days prior to each mandatory sinking
fund payment date for any series of Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities or applying previously cancelled Securities of that series pursuant to Section 12.02 and the basis for such credit and will
also deliver to the Trustee any Securities to be so delivered which have not theretofore been delivered to the Trustee. Not less than
30 days before each such mandatory sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such mandatory
sinking fund payment date in the manner specified in Section 11.02 and cause notice of the redemption thereof to be given in the name
of and at the expense of the Company in the manner provided in Section 11.03. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Section 11.04, Section 11.05 and Section 11.06.
ARTICLE XIII.
REPAYMENT OF SECURITIES
AT OPTION OF HOLDERS
Section 13.01 Applicability of Article.
Securities of any series that are repayable before
their Stated Maturity at the option of the Holders shall be repaid in accordance with their terms and (except as otherwise specified as
contemplated by Section 3.01 for Securities of any series) in accordance with this Article.
Section 13.02 Notice of Repayment Date.
Notice of any Repayment Date with respect to Securities
of any series shall, unless otherwise specified by the terms of the Securities of such series, be given by the Company not less than 10
nor more than 60 days prior to such Repayment Date, to the Trustee and to each Holder of Securities of such series in accordance with
Section 1.05 and Section 1.06, respectively.
The notice as to Repayment Date shall state:
(1) the Repayment Date;
(2) the Repayment Price;
(3) the place or places where such Securities are
to be surrendered for payment of the Repayment Price, which shall be the office or agency of the Company in each Place of Payment, and
the date by which Securities must be so surrendered in order to be repaid;
(4) a description of the procedure which a Holder
must follow to exercise a repayment right; and
(5) that exercise of the option to elect repayment
is irrevocable.
No failure of the Company to give the foregoing
notice shall limit any Holder’s right to exercise a repayment right.
Section 13.03 Deposit of Repayment Price.
On or prior to any Repayment Date, the Company
shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust
as provided in Section 10.03) an amount of money sufficient to pay the Repayment Price of and (except if the Repayment Date shall be an
Interest Payment Date) accrued interest on, all the Securities of such series which are to be repaid on that date.
Section 13.04 Securities Payable on Repayment Date.
The form of option to elect repayment having been
delivered as specified in the form of Security for such series as provided in Section 2.01, the Securities so to be repaid shall, on the
Repayment Date, become due and payable at the Repayment Price applicable thereto, and from and after such date (unless the Company shall
default in the payment of the Repayment Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for repayment in accordance with said notice, such Security shall be paid by the Company at the Repayment Price, together
with accrued interest to the Repayment Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments
of interest whose Stated Maturity is on or prior to such Repayment Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the relevant Record Date according to their terms and the provisions
of Section 3.07.
If any Security to be repaid shall not be so paid
upon surrender thereof for repayment, the principal shall, until paid, bear interest from the Repayment Date at the rate prescribed in
the Security.
Section 13.05 Securities Repaid in Part.
Any Security which by its terms may be repaid in
part at the option of the Holder thereof and which is to be repaid only in part shall be surrendered at any office or agency of the Company
designated for that purpose pursuant to Section 10.02 (with, if the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s
attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in exchange for the unrepaid portion of the principal of the Security
so surrendered. If a Global Security is so surrendered, such new Security so issued shall be a new Global Security.
ARTICLE XIV.
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01 Applicability of Article; Company’s Option to
Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is made for
either or both of (a) defeasance of the Securities of a series under Section 14.02 or (b) covenant defeasance of the Securities of a series
under Section 14.03, then the provisions of such Section or Sections, as the case may be, together with the other provisions of this Article
XIV, shall be applicable to the Securities of such series, and the Company may at its option at any time with respect to the Securities
of such series, elect to have either Section 14.02 (if applicable) or Section 14.03 (if applicable) be applied to the Outstanding Securities
of such series upon compliance with the conditions set forth below in this Article XIV.
Section 14.02 Defeasance and Discharge.
Upon the Company’s exercise of the above
option applicable to this Section with respect to the Outstanding Securities of a particular series, the Company shall be deemed to have
been discharged from its obligations, and the provisions of Article XVI shall cease to be effective, with respect to the Outstanding Securities
of such series (except for certain obligations to register the transfer or exchange of Securities of such series, to replace stolen, lost
or mutilated Securities of such series, and to maintain paying agencies) on and after the date the conditions precedent set forth in section
14.04 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense
of the Company and upon Company Request, shall execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of Outstanding Securities of such series to receive,
solely from the trust fund described in Section 14.04 as more fully set forth in such Section, payments of the principal of and any premium
and interest on such Securities when such payments are due, (B) the Company’s obligations with respect to such Securities under
Section 3.04, Section 3.05, Section 3.06, Section 6.07, Section 10.02 and Section 10.03 and such obligations as shall be ancillary thereto,
(C) the rights, powers, trusts, duties, immunities and other provisions in respect of the Trustee hereunder and (D) this Article XIV.
Subject to compliance with this Article XIV, the Company may exercise its option under this Section 14.02 notwithstanding the prior exercise
of its option under Section 14.03 with respect to the Securities of such series.
Section 14.03 Covenant Defeasance.
Upon the Company’s exercise of the above
option applicable to this Section with respect to the Outstanding Securities of a particular series, (i) the Company shall be released
from its obligations under Section 8.01 (and any other covenant applicable to such Securities that is determined pursuant to Section 3.01
to be subject to covenant defeasance under this Section), (ii)the occurrence of an event specified in Section 5.01(4) with respect to
Section 8.01 (and any other Event of Default applicable to such Securities that is determined pursuant to Section 3.01 to be subject to
covenant defeasance under this Section) shall not be deemed to be an Event of Default and (iii) the provisions of Article XVI shall cease
to be effective, in each case, with respect to the Outstanding Securities of such series on and after the date the conditions set forth
in Section 14.04 are satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of such series, the Company may omit to comply with and shall have no liability in respect
of any term, condition, limitation or restrictive covenant set forth in any such specified Section or Article whether directly or indirectly
by reason of any reference elsewhere herein to any such Section or Article or by reason of any reference in any such Section or Article
to any other provision herein or in any other document, including any supplement hereto, any Board Resolution or Officers’ Certificate
delivered hereto but the remainder of this Indenture and such Securities shall be unaffected thereby.
Section 14.04 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent
to application of either Section 14.02 or Section 14.03 to the Outstanding Securities of a particular series:
(1) The Company shall irrevocably have deposited
or caused to be deposited with the Trustee or an affiliate of the Trustee (or another trustee satisfying the requirements of Section 6.09
who shall agree to comply with the provisions of this Article XIV applicable to it) as trust funds in trust for the purpose of making
the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities,
(A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment of principal and interest in respect thereof
in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount, or (C) a combination
thereof, sufficient, without reinvestment of interest earned thereon, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereto delivered to the Trustee, to pay and discharge, and which shall be applied by
the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of and any premium, if any, and interest on the Outstanding
Securities of such series on the maturity of such principal, premium or interest and (ii) any mandatory sinking fund payments or analogous
payments applicable to the Outstanding Securities of such series on the day on
which such payments are due in accordance with the terms
of this Indenture and of such Securities. Before such a deposit, the Company may make arrangements satisfactory to the Trustee for the
redemption of Securities at a future date or dates in accordance with Article XI, which shall be given effect in applying the foregoing.
For this purpose, “U.S. Government Obligations” means securities that are (x) direct obligations of the United States
for the payment of which its full faith and credit is pledged or (y) obligations of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States the timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall
also include a depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian
with respect to any such U.S. Government Obligation or a specific payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depositary receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation
evidenced by such depositary receipt.
(2) No Event of Default with respect to the Securities
of such series shall have occurred and be continuing (A) on the date of such deposit or (B) insofar as Section 5.01(5) and Section 5.01(6)
are concerned, at any time during the period ending on the 91st day after the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that the condition
in this condition shall not be deemed satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall
not (A) cause the Trustee for the Securities of such series to have a conflicting interest as defined in Section 6.08 or for purposes
of the Trust Indenture Act with respect to any securities of the Company or (B) result in the trust arising from such deposit to constitute,
unless it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall
not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to
which the Company is a party or by which it is bound.
(5) In the case of an election under Section 14.02,
the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of this Indenture there has been a change in the applicable
Federal income tax law, in either case to the effect that, and based thereon such opinion shall confirm that, the Holders of the Outstanding
Securities of such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to United States federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit, defeasance and discharge had not occurred.
(6) In the case of an election under Section 14.03,
the Company shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for United States federal income tax purposes as a result of such covenant defeasance
and will be subject to United States federal income tax on the same amounts, in the same manner and at the same times as would have been
the case if such deposit and covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall
be effected in compliance with any additional terms, conditions or limitations which may be imposed on the Company in connection therewith
pursuant to Section 3.01.
(8) At the time of such deposit, (A) no default
in the payment of any principal of or premium or interest on any Senior Debt shall have occurred and be continuing, (B) no event of default
with respect to any Senior Debt shall have resulted in such Senior Debt becoming, and continuing to be, due and payable prior to the date
on which it would otherwise have become due and payable (unless payment of such Senior Debt has been made or duly provided for), and (C)
no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting (after notice or lapse of time
or both) the holders of such Senior Debt (or a trustee on behalf of such holders) to declare such Senior Debt due and payable prior to
the date on which it would otherwise have become due and payable.
(9) The Company shall have delivered to the Trustee
an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to either the
defeasance under Section 14.02 or the covenant defeasance under Section 14.03 (as the case may be) have been complied with.
Section 14.05 Deposited Money and U.S. Government Obligations to
be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 10.03, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively, for purposes for this Section 14.05, the “Trustee”) pursuant to Section 14.04 in respect of the Outstanding
Securities of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and
this Indenture, to the payment, either directly or through any Paying Agent (but not including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal, premium
and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the money or U.S. Government Obligations deposited pursuant to Section
14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations held by
it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be required to be deposited
to effect an equivalent defeasance or covenant defeasance.
All money and U.S. Government Obligations (including
the proceeds thereof) held and applied pursuant to this Section 14.05 shall not be subject to the claims of the holders of Senior Debt
under Article XVI.
Section 14.06 Reinstatement.
If the Trustee or the Paying Agent is unable to
apply any money in accordance with Section 14.02 or Section 14.03 with respect to the Securities of any series by reason of any order
or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the Company’s
obligations under this Indenture and the Securities of such series shall be revived and reinstated as though no deposit had occurred pursuant
to this Article XIV until such time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 14.02
or Section 14.03; provided, however, that if the Company makes any payment of the principal of or any premium or interest on any such
Security following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
ARTICLE XV.
IMMUNITY OF INCORPORATORS,
STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 15.01 Immunity of Incorporators, Stockholders, Officers
and Directors.
No recourse under or upon any obligation, covenant
or agreement of this Indenture, or of any Security, or for any claim based thereon or otherwise in respect thereof, shall be had against
any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution, statute or rule of law, or by the enforcement of any assessment
or penalty or otherwise; it being expressly understood that this Indenture and the obligations issued hereunder are solely corporate obligations,
and that no personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors,
as such, of the Company or any successor corporation, or any of them, because of the creation of the indebtedness hereby authorized, or
under or by this
Indenture or in any of the Securities or implied therefrom; and that any and all such personal liability of every name
and nature, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every
such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby authorized, or under
or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom
are hereby expressly waived and released as a condition of, and as a consideration for, the execution of this Indenture and the issue
of such Securities.
ARTICLE XVI.
SUBORDINATION OF SECURITIES
Section 16.01 Securities Subordinate to Senior Debt.
The Company covenants and agrees that anything
in this Indenture or the Securities of any series to the contrary notwithstanding, the indebtedness evidenced by the Securities of each
series is subordinate in right of payment to all Senior Debt to the extent provided herein, and each Holder of Securities of each series,
by such Holder’s acceptance thereof, likewise covenants and agrees to the subordination herein provided and shall be bound by the
provisions hereof. Senior Debt shall continue to be Senior Debt and entitled to the benefits of these subordination provisions irrespective
of any amendment, modification or waiver of any term of the Senior Debt or extension or renewal of the Senior Debt.
In the event that the Company shall default in
the payment of any principal of (or premium, if any) or interest on any Senior Debt when the same becomes due and payable, whether at
maturity or at a date fixed for repayment or by declaration of acceleration or otherwise, then, upon written notice of such default to
the Company by the holders of Senior Debt or any trustee therefor or representative thereof, unless and until such default shall have
been cured or waived or shall have ceased to exist, no direct or indirect payment (in cash, property, securities, by set-off or otherwise)
shall be made or agreed to be made on account of the principal of (or premium, if any) or interest on any of the Securities, or in respect
of any redemption, retirement, purchase or other acquisition of any of the Securities.
In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating to the Company, its creditors or its property,
(b) any proceeding for the liquidation, dissolution
or other winding up of the Company, voluntary or involuntary, whether or not involving insolvency or bankruptcy proceedings,
(c) any assignment by the Company for the benefit
of creditors, or
(d) any other marshalling of the assets of the
Company,
all Senior Debt (including any interest thereon accruing after the
commencement of any such proceedings) shall first be paid in full before any payment or distribution, whether in cash, securities or other
property, shall be made to any Holder of any of the Securities on account thereof. Any payment or distribution, whether in cash, securities
or other property (other than securities of the Company or any other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinate, at least to the extent provided in these subordination provisions with respect to the indebtedness
evidenced by the Securities, to the payment of all Senior Debt at the time outstanding and to any securities issued in respect thereof
under any such plan of reorganization or readjustment), which would otherwise (but for these subordination provisions) be payable or deliverable
in respect of the Securities of any series shall be paid or delivered directly to the holders of Senior Debt in accordance with the priorities
then existing among such holders until all Senior Debt (including any interest thereof accruing after the commencement of any such proceedings)
shall have been paid in full. In the event of any such proceeding, after payment in full of all sums owing with respect to Senior Debt,
the Holders of the Securities, together with the holders of any obligations of the Company ranking on a parity with the Securities, shall
be entitled to be paid from the remaining assets of the Company the amounts at the time due and owing on account of unpaid principal of
(and premium, if
any) and interest on the Securities and such other obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or any obligations of the Company ranking junior to the Securities
and such other obligations.
In the event that, notwithstanding the foregoing,
any payment or distribution of any character, whether in cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the payment of which is subordinate, at least to the extent
provided in these subordination provisions with respect to the indebtedness evidenced by the Securities, to the payment of all Senior
Debt at the time outstanding and to any securities issued in respect thereof under any such plan of reorganization or readjustment), or
any security shall be received by the Trustee or any Holder in contravention of any of the terms hereof, such payment or distribution
or security shall be received in trust for the benefit of, and shall be paid over or delivered and transferred to, the holders of the
Senior Debt at the time outstanding in accordance with the priorities then existing among such holders for application to the payment
of all Senior Debt remaining unpaid, to the extent necessary to pay all such Senior Debt in full. In the event of the failure of the Trustee
or any Holder to endorse or assign any such payment, distribution or security, each holder of Senior Debt is hereby irrevocably authorized
to endorse or assign the same.
No present or future holder of any Senior Debt
shall be prejudiced in the right to enforce subordination of the indebtedness evidenced by the Securities by any act or failure to act
on the part of the Company. Nothing contained herein shall impair, as between the Company and the Holders of Securities of each series,
the obligation of the Company to pay to such Holders the principal of (and premium, if any) and interest on such Securities or prevent
the Trustee or the Holder from exercising all rights, powers and remedies otherwise permitted by applicable law or hereunder upon an Event
of Default, all subject to the rights of the holders of the Senior Debt to receive cash, securities or other property otherwise payable
or deliverable to the Holders.
Senior Debt shall not be deemed to have been paid
in full unless the holders thereof shall have received cash, securities or other property equal to the amount of such Senior Debt then
outstanding. Upon the payment in full of all Senior Debt, the Holders of Securities of each series shall be subrogated to all rights of
any holders of Senior Debt to receive any further payments or distributions applicable to the Senior Debt until the indebtedness evidenced
by the Securities of such series shall have been paid in full, and such payments or distributions received by such Holders, by reason
of such subrogation, of cash, securities or other property which otherwise would be paid or distributed to the holders of Senior Debt,
shall, as between the Company and its creditors other than the holders of Senior Debt, on the one hand, and such Holders, on the other
hand, be deemed to be a payment by the Company on account of Senior Debt, and not on account of the Securities of such series.
The provisions of this Section 16.01 shall not
impair any right, interests, remedies or powers of any secured creditor of the Company in respect of any security interest the creation
of which is not prohibited by the provisions of this Indenture.
The securing of any obligations of the Company,
otherwise ranking on a parity with the Securities or ranking junior to the Securities, shall not be deemed to prevent such obligations
from constituting, respectively, obligations ranking on a parity with the Securities or ranking junior to the Securities.
Section 16.02 Trustee and Holders of Securities May Rely on Certificate
of Liquidating Agent; Trustee May Require Further Evidence as to Ownership of Senior Debt; Trustee Not Fiduciary to Holders of Senior
Debt.
Upon any payment or distribution of assets of the
Company referred to in this Article XVI, the Trustee and the Holders shall be entitled to conclusively rely upon an order or decree made
by any court of competent jurisdiction in which such dissolution or winding up or liquidation or reorganization or arrangement proceedings
are pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other Person making
such payment or distribution, delivered to the Trustee or to the Holders, for the purpose of ascertaining the Persons entitled to participate
in such distribution, the holders of the Senior Debt and other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article XVI. In the absence of any such
bankruptcy trustee, receiver, assignee or other Person, the Trustee shall be entitled to conclusively rely upon a written notice by a
Person representing themselves to be a holder of Senior Debt (or a trustee or representative on behalf of such holder) as
evidence that
such Person is a holder of such Senior Debt (or is such a trustee or representative). In the event that the Trustee determines, in good
faith, that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payments
or distributions pursuant to this Article XVI, the Trustee may request such Person to furnish evidence to the reasonable satisfaction
of the Trustee as to the amount of Senior Debt held by such Person, as to the extent to which such Person is entitled to participate in
such payment or distribution, and as to other facts pertinent to the rights of such Person under this Article XVI, and if such evidence
is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive
such payment. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article, and no implied covenants or obligations with respect to the holders of Senior
Debt shall be read into this Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders of
Senior Debt and, subject to the provisions of Section 6.01, the Trustee shall not be liable to any holder of Senior Debt if it shall in
good faith pay over or deliver to Holders of Securities, the Company or any other Person moneys or assets to which any holder of Senior
Debt shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Debt shall be read into this Indenture against the Trustee.
Section 16.03 Payment Permitted If No Default.
Nothing contained in this Article XVI or elsewhere
in this Indenture, or in any of the Securities, shall prevent (a) the Company at any time, except during the pendency of any dissolution,
winding up, liquidation or reorganization proceedings referred to in, or under the conditions described in, Section 16.01, from making
payments of the principal of (or premium, if any) or interest on the Securities, or (b) the application by the Trustee or any Paying Agent
of any moneys deposited with it hereunder to payments of the principal of (or premium, if any) or interest on the Securities if the Trustee
or such Paying Agent, as the case may be, did not have the written notice provided for in Section 16.04 by the times referred to therein
of any event prohibiting the making of such deposit or exchange, and the Trustee or any Paying Agent shall not be affected by any notice
to the contrary received by it on or after such times.
Section 16.04 Trustee Not Charged with Knowledge of Prohibition.
Anything in this Article XVI or elsewhere in this
Indenture contained to the contrary notwithstanding, the Trustee shall not at any time be charged with knowledge of the existence of any
facts which would prohibit the making of any payment of money to or by the Trustee and shall be entitled conclusively to assume that no
such facts exist and that no event specified in Section 16.01 has happened, until the Trustee shall have received an Officers’ Certificate
to that effect or notice in writing to that effect signed by or on behalf of the holder or holders, or their representatives, of Senior
Debt who shall have been certified by the Company or otherwise established to the reasonable satisfaction of the Trustee to be such holder
or holders or representatives or from any trustee under any indenture pursuant to which such Senior Debt shall be outstanding; provided,
however, that, if prior to the third Business Day preceding the date upon which by the terms hereof any money becomes payable (including,
without limitation, the payment of either the principal of or interest on any Security), or in the event of the execution of an instrument
pursuant to Section 4.01 acknowledging satisfaction and discharge of this Indenture, then if prior to the second Business Day preceding
the date of such execution, the Trustee or any Paying Agent shall not have received with respect to such money the Officers’ Certificate
or notice provided for in this Section 16.04, then, anything herein contained to the contrary notwithstanding, the Trustee or such Paying
Agent shall have full power and authority to receive such money and apply the same to the purpose for which they were received and shall
not be affected by the notice to the contrary which may be received by it on or after such date. The Company shall give prompt written
notice to the Trustee and to the Paying Agent of any facts which would prohibit the payment of money to or by the Trustee or any Paying
Agent.
Subject to the provisions of Section 6.01, the
Trustee shall be entitled to conclusively rely on the delivery to it of a written notice by a person representing themselves to be a holder
of Senior Debt (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Debt
(or a trustee or agent on behalf of any such holder). In the event that the Trustee determines in good faith that further evidence is
required with respect to the right of any person as a holder of Senior Debt to participate in any payment or distribution
pursuant to
this Article, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Debt held by such person, the extent to which such person is entitled to participate in such payment or distribution and any other
facts pertinent to the rights of such person under this Article, and if such evidence is not furnished, the Trustee may defer any payment
which it may be required to make for the benefit of such person pursuant to the terms of this Indenture pending judicial determination
as to the rights of such person to receive such payment.
Section 16.05 Trustee to Effectuate Subordination.
Each Holder of Securities by such Holder’s
acceptance thereof authorizes and directs the Trustee on such Holder’s behalf to take such action as may be necessary or appropriate
to effectuate the subordination as between such Holder and holders of Senior Debt as provided in this Article and appoints the Trustee
its attorney-in-fact for any and all such purposes.
Section 16.06 Rights of Trustee as Holder of Senior Debt.
The Trustee shall be entitled to all the rights
set forth in this Article with respect to any Senior Debt which may at the time be held by it, to the same extent as any other holder
of Senior Debt, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder; provided, however, that nothing
in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 6.07.
Section 16.07 Article Applicable to Paying Agents.
In case at any time any Paying Agent other than
the Trustee shall have been appointed by the Company and be then acting hereunder, the term “Trustee” as used in this Article
shall in such case (unless the context shall otherwise require) be construed as extending to and including such Paying Agent within its
meaning as fully for all intents and purposes as if the Paying Agent were named in this Article in addition to or in place of the Trustee;
provided, however, that Sections 16.04 and 16.06 shall not apply to the Company or any Affiliate of the Company if the Company or such
Affiliate acts as Paying Agent.
Section 16.08 Subordination Rights Not Impaired by Acts or Omissions
of the Company or Holders of Senior Debt.
No right of any present or future holder of any
Senior Debt to enforce subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to
act on the part of the Company or by any act or failure to act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof which any such holder may have or be otherwise
charged with. The holders of Senior Debt may, at any time or from time to time and in their absolute discretion, change the manner, place
or terms of payment, change or extend the time of payment of, or renew or alter, any such Senior Debt, or amend or supplement any instrument
pursuant to which any such Senior Debt is issued or by which it may be secured, or release any security therefor, or exercise or refrain
from exercising any other of their rights under the Senior Debt, including, without limitation, the waiver of default thereunder, all
without notice to or assent from the Holders of the Securities or the Trustee and without affecting the obligations of the Company, the
Trustee or the Holders of the Securities under this Article.
* * *
This Indenture may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, as of the day and year first above written.
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PACIFICORP |
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Name: |
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Title: |
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as Trustee |
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By: |
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Name: |
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Title: |
Exhibit 5.1
July 25, 2024
PacifiCorp
825 N.E. Multnomah Street
Portland, Oregon 97232
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as special counsel to PacifiCorp,
an Oregon corporation (the “Company”), in connection with the preparation and filing of a registration statement
on Form S-3 (the “Registration Statement”) filed with the Securities and Exchange Commission pursuant to the Securities
Act of 1933, as amended (the “Securities Act”) and the rules and regulations promulgated thereunder (the “Rules”),
for the registration of the sale from time to time by the Company of First Mortgage Bonds and other debt securities, which may include
senior debt securities or subordinated debt securities (the “Debt Securities” and together with the First Mortgage
Bonds, the “Securities”).
We understand that the Securities will be sold
or delivered from time to time as set forth in the Registration Statement, the applicable prospectus contained therein (the “Prospectus”)
and supplements to the Prospectus. The First Mortgage Bonds will be issued in one or more series pursuant to the Mortgage and Deed of
Trust, dated as of January 9, 1989, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor trustee,
as amended and supplemented (the “Mortgage”). The Mortgage is in the form incorporated by reference as an exhibit to
the Registration Statement. The Debt Securities will be issued in one or more series, in each case pursuant to one or more indentures
(each, together with the Mortgage, an “Indenture”).
In our capacity as counsel to the Company we have
examined such documents, agreements and instruments as we have deemed necessary for the opinions expressed below. As to matters of fact
material to the opinions expressed herein, we have relied on (a) information in public authority documents (and all opinions based
on public authority documents are as of the date of such public authority documents and not as of the date of this opinion letter) and
(b) information provided in certificates of officers of the Company. We have not independently verified the facts so relied on. In
our examination, we have assumed the following without investigation: (a) the authenticity of original documents and the genuineness
of all signatures, (b) the conformity to the originals of all documents submitted to us as copies, and (c) the truth, accuracy
and completeness of the information, representations and warranties contained in the records, documents, agreements, instruments and certificates
we have reviewed.
Based upon the foregoing examination and in reliance
thereon, and subject to (i) the assumptions stated and in reliance on statements of fact contained in the documents we have examined
and (ii) completion of all corporate action required to be taken by the Company to duly authorize each proposed issuance of the Securities,
we are of the opinion that when (a) the terms of the Securities have been established in accordance with the Indenture, (b) the
Indenture has been qualified under the Trust Indenture Act of 1939, as amended, (c) the Indenture and the applicable supplement thereto,
if any, have been duly authorized and validly executed and delivered by the Company and the trustee thereunder, and (d) the Securities
have been executed, issued, delivered and authenticated in accordance with terms of the Indenture and the applicable purchase, underwriting
or similar agreement against the receipt of requisite consideration therefor provided therein, the Securities will constitute binding
obligations of the Company.
The opinions expressed above are subject to the
following exclusions and qualifications:
a. Our
opinions are as of the date hereof and we have no responsibility to update this opinion for events and circumstances occurring after the
date hereof or as to facts relating to prior events that are subsequently brought to our attention. This opinion is limited to the laws,
including the rules and regulations, as in effect on the date hereof, and we disavow any undertaking to advise you of any changes
in law.
b. We
express no opinion as to enforceability of any right or obligation to the extent such right or obligation is subject to and limited by
(i) the effect of bankruptcy, insolvency, reorganization, receivership, conservatorship, arrangement, moratorium, fraudulent transfer
or other laws affecting or relating to the rights of creditors generally, (ii) rules governing the availability of specific
performance, injunctive relief or other equitable remedies and general principles of equity, regardless of whether arising prior to, or
after, the date hereof or considered in a proceeding in equity or at law, or (iii) the effect of federal and state securities laws
and principles of public policy on the rights of indemnity and contribution.
c. We
do not express any opinions herein concerning any laws other than the laws in their current forms of the State of Oregon, the State of
New York and the federal securities laws of the United States of America, and we express no opinion with respect to the laws of any other
jurisdiction and expressly disclaim responsibility for advising you as to the effect, if any, that the laws of any other jurisdiction
may have on the opinions set forth herein.
We consent to the filing of this opinion as an
exhibit to the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference
to our firm in the Prospectus under the caption “Legal Matters.” In giving such consent, we do not thereby admit that we are
in the category of persons whose consent is required under Section 7 of the Securities Act or related Rules.
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Very truly yours, |
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/s/ Perkins Coie LLP |
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PERKINS COIE LLP |
EXHIBIT 15.1
July 25, 2024
The Board of Directors and Shareholders of PacifiCorp
825 N.E. Multnomah Street
Portland, Oregon 97232
We are aware that our report dated May 3, 2024, on our review of the
interim financial information of PacifiCorp appearing in PacifiCorp’s Quarterly Report on Form 10-Q for the quarter ended March
31, 2024, is incorporated by reference in this Registration Statement.
/s/ Deloitte & Touche LLP
Portland, Oregon
EXHIBIT 23.1
CONSENT OF INDEPENDENT REGISTERED
PUBLIC ACCOUNTING FIRM
We consent to the
incorporation by reference in this Registration Statement on Form S-3 of our report dated February 23, 2024, relating to the financial
statements of PacifiCorp, appearing in the Annual Report on Form 10-K of PacifiCorp for the year ended December 31, 2023. We also consent
to the reference to us under the heading “Experts” in such Registration Statement.
/s/ Deloitte &
Touche LLP
Portland, Oregon
July 25, 2024
Exhibit 25.1
= = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction of incorporation
if not a U.S. national bank) |
95-3571558
(I.R.S. employer
identification no.) |
|
333 South Hope Street
Suite 2525
Los
Angeles, California
(Address of principal executive offices) |
90071
(Zip code) |
PACIFICORP
(Exact name of obligor as specified in its charter)
Oregon
(State or other jurisdiction of
incorporation or organization) |
93-0246090
(I.R.S. employer
identification no.) |
825
N.E. Multnomah Street
Portland, Oregon
(Address of principal executive offices) |
97232
(Zip code) |
First Mortgage Bonds
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
1. General
information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address |
| Comptroller of the Currency United States Department of the Treasury |
Washington, DC 20219 |
| |
|
| Federal Reserve Bank |
San Francisco, CA 94105 |
| |
|
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If
the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known
as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with
Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed
with Registration Statement No. 333-152875). |
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements
of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Houston, and State of Texas, on the 22nd day of July, 2024.
| |
THE BANK OF NEW YORK MELLON |
| |
TRUST COMPANY, N.A. |
| |
|
| |
By: |
/s/ |
April Bradley |
| |
|
Name: |
April Bradley |
| |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report
of Condition of
THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope
Street, Suite 2525, Los Angeles, CA 90071
At the close of
business March 31, 2024, published in accordance with Federal regulatory authority instructions.
| | |
Dollar amounts | |
| | |
in thousands | |
| ASSETS | |
| | |
| | |
| | |
| Cash and balances due from depository
institutions: | |
| | |
| Noninterest-bearing
balances and currency and coin | |
| 3,941 | |
| Interest-bearing
balances | |
| 357,485 | |
| Securities: | |
| | |
| Held-to-maturity securities | |
| 0 | |
| Available-for-sale debt securities | |
| 528 | |
| Equity securities with readily
determinable fair values not held for trading | |
| 0 | |
| Federal funds sold and securities purchased under agreements to resell: | |
| | |
| Federal funds sold in domestic
offices | |
| 0 | |
| Securities purchased under agreements
to resell | |
| 0 | |
| Loans and lease financing receivables: | |
| | |
| Loans and leases held for sale | |
| 0 | |
| Loans and leases, held for investment | |
| 0 | |
| LESS: Allowance for credit losses
on loans and leases | |
| 0 | |
| Loans and leases held for investment,
net of allowance | |
| 0 | |
| Trading assets | |
| 0 | |
| Premises and fixed assets (including
capitalized leases) | |
| 12,163 | |
| Other real estate owned | |
| 0 | |
| Investments in unconsolidated
subsidiaries and associated companies | |
| 0 | |
| Direct and indirect investments
in real estate ventures | |
| 0 | |
| Intangible assets | |
| 856,313 | |
| Other assets | |
| 102,764 | |
| | |
| | |
| Total
assets | |
| $1,333,194 | |
LIABILITIES
| Deposits: | |
| |
| In domestic offices | |
| 1,444 | |
| Noninterest-bearing | |
| 1,444 | |
| Interest-bearing | |
| 0 | |
| | |
| | |
| Federal funds purchased and securities sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic offices | |
| 0 | |
| Securities sold under agreements to repurchase | |
| 0 | |
| Trading liabilities | |
| 0 | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness and obligations under capitalized leases) | |
| 0 | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| 0 | |
| Other liabilities | |
| 276,687 | |
| Total liabilities | |
| 278,131 | |
| Not applicable | |
| | |
| | |
| | |
| EQUITY CAPITAL | |
| | |
| | |
| | |
| Perpetual preferred stock and related surplus | |
| 0 | |
| Common stock | |
| 1,000 | |
| Surplus (exclude all surplus related to preferred stock) | |
| 106,705 | |
| Not available | |
| | |
| Retained earnings | |
| 947,358 | |
| Accumulated other comprehensive income | |
| 0 | |
| Other equity capital components | |
| 0 | |
| Not available | |
| | |
| Total bank equity capital | |
| 1,055,063 | |
| Noncontrolling (minority) interests in consolidated subsidiaries | |
| 0 | |
| Total equity capital | |
| 1,055,063 | |
| Total liabilities and equity capital | |
| 1,333,194 | |
I, Janice Shell,
CFO of the above-named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this
report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true
to the best of my knowledge and belief.
We, the undersigned
directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date
and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
| Antonio
I. Portuondo, President |
) |
|
| Loretta
A. Lundberg, Managing Director |
) |
Directors
(Trustees) |
| Cathleen
M. Sokolowski, Managing Director |
) |
|
Exhibit 25.2
= = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction of incorporation
if not a U.S. national bank) |
95-3571558
(I.R.S. employer
identification no.) |
|
333 South Hope Street
Suite 2525
Los
Angeles, California
(Address of principal executive offices) |
90071
(Zip code) |
PACIFICORP
(Exact name of obligor as specified in its charter)
Oregon
(State or other jurisdiction of
incorporation or organization)
|
93-0246090
(I.R.S. employer
identification no.) |
825 N.E. Multnomah Street
Portland, Oregon
(Address of principal executive offices)
|
97232
(Zip code) |
Unsecured Senior Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
1. General
information. Furnish the following information as to the trustee:
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address |
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219 |
| Federal Reserve Bank |
San
Francisco, CA 94105
|
Federal Deposit Insurance Corporation
|
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If
the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known
as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with
Registration Statement No.
333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed
with Registration Statement No.
333-152875). |
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements
of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Houston, and State of Texas, on the 22nd day of July, 2024.
| |
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A. |
| |
|
| |
By: |
/s/ |
April Bradley |
| |
|
Name: |
April Bradley |
| |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles,
CA 90071
At the close of business March 31, 2024, published
in accordance with Federal regulatory authority instructions.
| |
Dollar amounts |
| |
in thousands |
| |
|
|
| ASSETS |
|
|
| |
|
|
| |
|
|
| Cash and balances due from |
|
|
| depository institutions: |
|
|
| Noninterest-bearing balances and currency and coin |
|
3,941 |
| Interest-bearing balances |
|
357,485 |
| Securities: |
|
|
| Held-to-maturity securities |
|
0 |
| Available-for-sale debt securities |
|
528 |
| Equity securities with readily determinable fair values not held for trading |
|
0 |
| Federal funds sold and securities |
|
|
| purchased under agreements to resell: |
|
|
| Federal funds sold in domestic offices |
|
0 |
| Securities purchased under agreements to resell |
|
0 |
| Loans and lease financing receivables: |
|
|
| Loans and leases held for sale |
|
0 |
| Loans and leases,
held for investment |
0 |
|
|
| LESS: Allowance for credit
losses on loans and leases |
0 |
|
|
| Loans and leases held for investment, net of allowance |
0 |
|
|
| |
|
|
| Trading assets |
|
0 |
| Premises and fixed assets (including capitalized leases) |
|
12,163 |
| Other real estate owned |
|
0 |
| Investments in unconsolidated subsidiaries and associated companies |
|
0 |
| Direct and indirect investments in real estate ventures |
|
0 |
| Intangible assets |
|
856,313 |
| Other assets |
|
102,764 |
| |
|
|
| Total assets |
$ |
1,333,194 |
| LIABILITIES |
|
| |
|
| Deposits: |
|
|
| In domestic offices |
|
1,444 |
| Noninterest-bearing |
1,444 |
|
|
| Interest-bearing |
0 |
|
|
| |
|
|
| Federal funds purchased and securities |
|
|
| sold under agreements to repurchase: |
|
|
| Federal funds purchased in domestic offices |
|
0 |
| Securities sold under agreements to repurchase |
|
0 |
| Trading liabilities |
|
0 |
| Other borrowed money: |
|
|
| (includes mortgage indebtedness and obligations under capitalized leases) |
|
0 |
| Not applicable |
|
|
| Not applicable |
|
|
| Subordinated notes and debentures |
|
0 |
| Other liabilities |
|
276,687 |
| Total liabilities |
|
278,131 |
| Not applicable |
|
|
| EQUITY CAPITAL |
|
| |
|
| Perpetual preferred stock and related surplus |
|
0 |
| Common stock |
|
1,000 |
| Surplus (exclude all surplus related to preferred stock) |
|
106,705 |
| Not available |
|
|
| Retained earnings |
|
947,358 |
| Accumulated other comprehensive income |
|
0 |
| Other equity capital components |
|
0 |
| Not available |
|
|
| Total bank equity capital |
|
1,055,063 |
| Noncontrolling (minority) interests in consolidated subsidiaries |
|
0 |
| Total equity capital |
|
1,055,063 |
| Total liabilities and equity capital |
|
1,333,194 |
I, Janice Shell, CFO of the above-named bank do
hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in
conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and
belief.
Janice Shell ) CFO
We, the undersigned directors (trustees), attest
to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined
by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
| Antonio
I. Portuondo, President |
) |
|
| Loretta
A. Lundberg, Managing Director |
) |
Directors
(Trustees) |
| Cathleen
M. Sokolowski, Managing Director |
) |
|
Exhibit 25.3
= = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK MELLON
TRUST COMPANY, N.A.
(Exact name of trustee as specified in its charter)
(Jurisdiction
of incorporation
if not a U.S. national bank) |
95-3571558
(I.R.S. employer
identification no.) |
|
333 South Hope Street
Suite 2525
Los
Angeles, California
(Address of principal executive offices) |
90071
(Zip code) |
PACIFICORP
(Exact name of obligor as specified in its charter)
Oregon
(State or other jurisdiction of
incorporation or organization) |
93-0246090
(I.R.S. employer
identification no.) |
825 N.E. Multnomah Street
Portland, Oregon
(Address of principal executive offices) |
97232
(Zip code) |
Unsecured Subordinated Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
| 1. | General information. Furnish the following information as
to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
| Name |
Address |
|
Comptroller of the Currency
United States Department of the Treasury
|
Washington, DC 20219 |
| Federal Reserve Bank |
San
Francisco, CA 94105
|
| Federal Deposit Insurance Corporation |
Washington, DC 20429 |
| (b) | Whether it is authorized to exercise corporate trust powers. |
Yes.
| 2. | Affiliations with Obligor. |
If
the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses
below, on file with the Commission, are incorporated herein by reference as an exhibit hereto, pursuant to Rule 7a-29 under the Trust
Indenture Act of 1939 (the "Act").
| 1. | A copy of the articles of association of The Bank of New York Mellon Trust Company, N.A., formerly known
as The Bank of New York Trust Company, N.A. (Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121948 and Exhibit 1 to Form
T-1 filed with Registration Statement No. 333-152875). |
| 2. | A copy of certificate of authority of the trustee to commence business. (Exhibit 2 to Form T-1 filed with
Registration Statement No. 333-121948). |
| 3. | A copy of the authorization of the trustee to exercise corporate trust powers (Exhibit 3 to Form T-1 filed
with Registration Statement No. 333-152875). |
| 4. | A copy of the existing by-laws of the trustee (Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-229762). |
| 6. | The consent of the trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration
Statement No. 333-152875). |
| 7. | A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements
of its supervising or examining authority. |
SIGNATURE
Pursuant to the requirements
of the Act, the trustee, The Bank of New York Mellon Trust Company, N.A., a banking association organized and existing under the laws
of the United States of America, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Houston, and State of Texas, on the 22nd day of July, 2024.
| |
THE BANK OF NEW YORK
MELLON TRUST COMPANY, N.A. |
| |
|
| |
By: |
/s/ |
April Bradley |
| |
|
Name: |
April Bradley |
| |
|
Title: |
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
of 333 South Hope Street, Suite 2525, Los Angeles,
CA 90071
At the close of business March 31, 2024, published
in accordance with Federal regulatory authority instructions.
| ASSETS | |
Dollar amounts
in
thousands | |
| | |
| |
| | |
| |
| Cash and balances due from | |
| | |
| depository institutions: | |
| | |
| Noninterest-bearing
balances and currency and coin | |
| 3,941 | |
| Interest-bearing balances | |
| 357,485 | |
| Securities: | |
| | |
| Held-to-maturity securities | |
| 0 | |
| Available-for-sale debt securities | |
| 528 | |
| Equity securities with readily
determinable fair values not held for trading | |
| 0 | |
| Federal funds sold and securities | |
| | |
| purchased
under agreements to resell: | |
| | |
| Federal funds sold in domestic
offices | |
| 0 | |
| Securities purchased under agreements
to resell | |
| 0 | |
| Loans and lease financing receivables: | |
| | |
| Loans and leases held for sale | |
| 0 | |
| Loans and
leases, held for investment | |
| 0 | |
| LESS: Allowance
for credit losses on loans and leases | |
| 0 | |
| Loans and
leases held for investment, net of allowance | |
| 0 | |
| Trading assets | |
| 0 | |
| Premises and fixed assets (including
capitalized leases) | |
| 12,163 | |
| Other real estate owned | |
| 0 | |
| Investments in unconsolidated
subsidiaries and associated companies | |
| 0 | |
| Direct and indirect investments
in real estate ventures | |
| 0 | |
| Intangible assets | |
| 856,313 | |
| Other assets | |
| 102,764 | |
| | |
| | |
| Total
assets | |
| $1,333,194 | |
LIABILITIES
| Deposits: | |
| |
| In domestic offices | |
| 1,444 | |
| Noninterest-bearing | |
| 1,444 | |
| Interest-bearing | |
| 0 | |
| Federal funds purchased and securities | |
| | |
| sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic offices | |
| 0 | |
| Securities sold under agreements to repurchase | |
| 0 | |
| Trading liabilities | |
| 0 | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness and obligations under capitalized leases) | |
| 0 | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| 0 | |
| Other liabilities | |
| 276,687 | |
| Total liabilities | |
| 278,131 | |
| Not applicable | |
| | |
EQUITY CAPITAL
| Perpetual preferred stock and related surplus | |
| 0 | |
| Common stock | |
| 1,000 | |
| Surplus (exclude all surplus related to preferred stock) | |
| 106,705 | |
| Not available | |
| | |
| Retained earnings | |
| 947,358 | |
| Accumulated other comprehensive income | |
| 0 | |
| Other equity capital components | |
| 0 | |
| Not available | |
| | |
| Total bank equity capital | |
| 1,055,063 | |
| Noncontrolling (minority) interests in consolidated subsidiaries | |
| 0 | |
| Total equity capital | |
| 1,055,063 | |
| Total liabilities and equity capital | |
| 1,333,194 | |
I, Janice Shell, CFO of the above-named bank do
hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in
conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and
belief.
We, the undersigned directors (trustees), attest
to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined
by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal
regulatory authority and is true and correct.
| Antonio I. Portuondo, President |
) |
|
| Loretta A. Lundberg,
Managing Director |
) |
Directors (Trustees) |
| Cathleen M. Sokolowski, Managing
Director |
) |
|
EXHIBIT 107
Calculation of Filing Fee Tables
FORM
S-3
(Form Type)
PacifiCorp
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered
and Carry Forward Securities
| | |
Security
Type | |
Security
Class
Title | |
Fee
Calculation
or Carry
Forward
Rule | |
Amount
Registered | |
Proposed
Maximum
Offering
Price
Per Unit | |
Maximum
Aggregate
Offering
Price | |
Fee
Rate | |
Amount of
Registration
Fee | |
Carry
Forward
Form
Type | |
Carry
Forward
File
Number | |
Carry
Forward
Initial
Effective
Date | |
Filing Fee
Previously
Paid In
Connection
with
Unsold
Securities
to be
Carried
Forward |
| | |
Newly Registered Securities |
| Fees to Be Paid | |
Debt | |
First Mortgage Bonds | |
(1) | |
(2) | |
(2) | |
(2) | |
(1) | |
(1) | |
| |
| |
| |
|
| | |
Debt | |
Unsecured Debt Securities | |
(1) | |
(2) | |
(2) | |
(2) | |
(1) | |
(1) | |
| |
| |
| |
|
| Fees Previously Paid | |
N/A | |
N/A | |
N/A | |
N/A | |
N/A | |
N/A | |
| |
N/A | |
| |
| |
| |
|
| Carry Forward Securities |
| Carry Forward Securities | |
N/A | |
N/A | |
N/A | |
N/A | |
| |
N/A | |
| |
| |
N/A | |
N/A | |
N/A | |
N/A |
| | |
Total Offering Amounts | |
| |
N/A | |
| |
N/A | |
| |
| |
| |
|
| | |
Total Fees Previously Paid | |
| |
| |
| |
N/A | |
| |
| |
| |
|
| | |
Total Fee Offsets | |
| |
| |
| |
N/A | |
| |
| |
| |
|
| | |
Net Fee Due | |
| |
| |
| |
N/A | |
| |
| |
| |
|
| (1) | In accordance with Rules 456(b)
and 457(r) under the Securities Act of 1933, as amended, the registrant is deferring payment of the entire registration fee. |
| (2) | An indeterminate amount and number
of securities of each identified class is being registered as may from time to time be offered at indeterminate prices. |
PacifiCorp (PK) (USOTC:PPWLO)
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