As filed with the Securities and Exchange Commission on December 4, 2014
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
IGATE CORPORATION
(Exact name of registrant as specified in charter)
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Pennsylvania |
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25-1802235 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification Number) |
100 Somerset Corporate Blvd.
Bridgewater, NJ 08807
(908) 219-8050
(Address,
including zip code, and telephone number, including area code, of registrants principal executive offices)
Jeffrey
Friedel
Senior Vice President - Legal
IGATE Corporation
100
Somerset Corporate Blvd.
Bridgewater, NJ 08807
(908) 219-8050
(Name, address, including zip code, and telephone number including area code, of agent for service)
Copy to:
James
J. Barnes, Esq.
Pepper Hamilton LLP
Suite 5000
500 Grant
Street
Pittsburgh, PA 15219-2507
Tel: (412) 454-5004
Fax:
(412) 281-0717
Approximate date of commencement of proposed sale to the public: From time to time on or after the effective date of this registration
statement.
If the only securities being registered on this form are being 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, 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) under 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, or a smaller
reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer |
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Accelerated filer |
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x |
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Non-accelerated filer |
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¨ (Do not check if a smaller reporting company) |
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Smaller reporting company |
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CALCULATION OF REGISTRATION FEE
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Title of Each Class of
Securities to be Registered |
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Amount
to be Registered(1)(2) |
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Proposed
Maximum Offering
Price Per Unit(1)(2) |
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Proposed
Maximum Aggregate
Offering Price(1)(2) |
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Amount of Registration Fee(3) |
Primary Offering by IGATE Corporation |
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Common Stock, par value $.01 per share |
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Preferred Stock, with no par value |
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Debt Securities |
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Warrants |
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Units |
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Subscription Rights |
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Total for Primary Offering |
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Secondary Offering by Selling Shareholders |
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Common Stock, par value $.01 per share |
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Total for Primary and Secondary Offering |
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(1) |
There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities, such indeterminate number of warrants to purchase
common stock, preferred stock or debt securities, such indeterminate number of units, and such indeterminate number of subscription rights as may be issued from time to time at prices to be determined. In addition, up to 23,384,095 shares of
common stock may be sold from time to time pursuant to this registration statement by the selling shareholders named herein. Any securities registered hereunder may be sold separately or as units with the other securities registered hereunder. The
securities registered hereunder also include such indeterminate aggregate principal amount and number of securities of each identified class of securities, which may be offered from time to time in unspecified numbers and at indeterminate prices,
and as may be issued upon conversion, redemption, repurchase, exchange or exercise of any securities registered hereunder, including under any applicable anti-dilution provisions. In addition, pursuant to Rule 416 under the Securities Act of
1933, as amended, or the Securities Act, the shares being registered hereunder include such indeterminate number of securities of each identified class of securities as may be issuable with respect to the securities being registered hereunder as a
result of stock splits, stock dividends or similar transaction. |
(2) |
Not required to be included pursuant to Form S-3 General Instruction II.E. |
(3) |
In accordance with Rules 456(b) and 457(r) under the Securities Act, we are deferring payment of the entire registration fee. |
PROSPECTUS
IGATE CORPORATION
Common Stock, Preferred Stock,
Debt Securities, Warrants, Units and Subscription Rights
and
23,384,095 Shares of Common Stock
This prospectus
covers our offer and sale from time to time of any combination of common stock, preferred stock, debt securities, warrants, units or subscription rights described in this prospectus in one or more offerings. This prospectus provides a general
description of the securities we may offer and sell. Each time we offer and sell securities we will provide specific terms of the securities offered in a supplement to this prospectus. The prospectus supplement may also add, update or change
information contained in this prospectus.
This prospectus also covers the resale by selling shareholders identified in the Selling
Shareholders section of this prospectus of up to an aggregate of 23,384,095 shares of our common stock issued. We will not receive proceeds from the sale of shares of our common stock by the selling shareholders.
The securities may be offered and sold by us or selling shareholders from time to time at fixed prices, at market prices or at negotiated
prices, and may be offered and sold to or through one or more underwriters, dealers or agents or directly to purchasers on a continuous or delayed basis. See Plan of Distribution.
Our common stock is currently listed on NASDAQ under the symbol IGTE. On November 28, 2014, the last reported sale price of
our common stock on NASDAQ was $36.95 per share.
You should rely only on the information contained or incorporated by reference in
this prospectus. We have not authorized any other person to provide you with different information.
Investing in
these securities involves risks, including those set forth in the Risk Factors section of our most recent Annual Report on Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q
filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which is incorporated by reference into this prospectus.
Neither the SEC nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is
truthful and complete. Any representation to the contrary is a criminal offense.
This
prospectus is dated December 4, 2014.
Neither we nor any selling shareholder has authorized any dealer, salesman or other
person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus and any accompanying supplement to this prospectus. You must not rely upon any information or representation not
contained or incorporated by reference in this prospectus or any accompanying prospectus supplement. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any
securities other than the registered securities to which they relate, nor do this prospectus and any accompanying supplement to this prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any
person to whom it is unlawful to make such offer or solicitation in such jurisdiction. The terms IGATE, Company, we, us and our refer to IGATE Corporation and its consolidated subsidiaries
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC using a shelf registration process for the delayed
offering and sale of securities pursuant to Rule 415 of the Securities Act. Under the shelf registration process, we may, over time, sell any combination of the securities described in this prospectus in one or more offerings. This prospectus also
covers the secondary offering by the selling shareholders identified herein of up to an aggregate of 23,384,095 shares of our common stock issued. We may offer and sell any combination of the securities described in this prospectus and the
selling shareholders may offer and sell shares of common stock in one or more offerings. This prospectus provides you with a general description of the securities we may offer and sell. Each time we offer and sell securities under this prospectus,
we will provide a prospectus supplement that will contain specific information about the terms of that offering. 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 the heading Where You Can Find More Information.
We have filed or incorporated by reference exhibits to the registration statement of which this prospectus forms a part. You should read the
exhibits carefully for provisions that may be important to you.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may read and copy any document we file
with the SEC at the SECs public reference room at 100 F Street NE, Room 1580, Washington, D.C. 20549. You may obtain information on the operation of the SECs public reference facilities by calling the SEC at
1-800-SEC-0330. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC at its principal office at 100 F Street NE, Room 1580, Washington, D.C. 20549-1004. The SEC maintains an Internet
website at http://www.sec.gov that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. Our SEC filings are accessible through the Internet at that website. Our reports on
Forms 10-K, 10-Q and 8-K, and amendments to those reports, are also available for download, free of charge, as soon as reasonably practicable after these reports are filed with the SEC, at our website at www.igate.com. The content contained in,
or that can be accessed through, our website is not a part of this prospectus.
INCORPORATION OF INFORMATION
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 information that we file later with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below:
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Our Annual Report on Form 10-K for the fiscal year ended December 31, 2013 that we filed with the SEC on February 12, 2014; |
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Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2014 that we filed with the SEC on April 18, 2014, our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2014
that we filed with the SEC on July 28, 2014, and our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2014 that we filed with the SEC on October 22, 2014; |
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Our Current Reports on Form 8-K filed with the SEC on February 6, 2014, February 13, 2014, March 20, 2014, April 7, 2014, April 11, 2014, June 11, 2014, and
November 4, 2014; |
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The description of our common stock contained in Item I of our registration statement filed November 19, 1996 on Form 8-A with the SEC; |
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All documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the Exchange Act, after the date of the initial filing of the registration
statement of which this prospectus is a part and prior to the effectiveness of such registration statement; and |
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All documents filed by us with the SEC pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act on or after the date of this prospectus and before we stop offering the securities under this prospectus.
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We will provide without charge to each person, including any beneficial owner, to whom this prospectus is delivered, upon
his or her written or oral request, a copy of any or all documents referred to above which have been or may be incorporated by reference into this prospectus but not delivered with this prospectus excluding exhibits to those documents unless they
are specifically incorporated by reference into those documents. You can request those documents from Jeffrey Friedel, Senior Vice President Legal, IGATE Corporation, 100 Somerset Corporate Blvd., Bridgewater, NJ 08807, telephone
(908) 219-8050.
The most recent information that we file with the SEC automatically updates and supersedes older information. The
information contained in any such filing will be deemed to be a part of this prospectus, commencing on the date on which the filing is made.
Information furnished under Items 2.02 or 7.01 (or corresponding information furnished under Item 9.01 or included as an exhibit) in
any past or future Current Report on Form 8-K that we file with the SEC, unless otherwise specified in such report, is not incorporated by reference in this prospectus.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. All statements that address operating performance, events or developments that we expect
or anticipate will occur in the future are forward-looking statements. In some cases, you can identify forward-looking statements by terms such as may, will, should, could, would,
expects, plans, anticipates, believes, estimates, projects, predicts, potential and similar expressions intended to identify forward-looking statements.
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These forward-looking statements are based on managements beliefs and assumptions and on
information currently available to our management. Our management believes that these forward-looking statements are reasonable as and when made. However, you should not place undue reliance on any such forward-looking statements because such
statements speak only as of the date when made. We do not undertake any obligation to publicly update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law. In
addition, forward-looking statements are subject to certain risks and uncertainties that could cause actual results, events and developments to differ materially from our historical experience and our present expectations or projections. Before
making an investment decision, you should carefully consider these risks as well as any other information we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement. You should read this prospectus
and the documents that we have filed as exhibits to the registration statement of which this prospectus forms a part in their entireties.
RISK FACTORS
Our business is influenced by many factors that are difficult to predict, and that involve uncertainties that may materially affect actual
operating results, cash flows and financial condition. Before making an investment decision, you should carefully consider these risks, including those set forth in the Risk Factors section of our most recent Annual Report on
Form 10-K, as revised or supplemented by our Quarterly Reports on Form 10-Q filed with the SEC since the filing of our most recent Annual Report on Form 10-K, each of which is incorporated by reference into this prospectus, and you should
also carefully consider any other information we include or incorporate by reference in this prospectus or include in any applicable prospectus supplement.
IGATE CORPORATION
Business Overview
We are a global leader
in providing integrated technology and operations-based information technology solutions. We provide solutions to clients business challenges by leveraging our technology and process capabilities and offering productized applications and
platforms that provide the necessary competitive and innovation edge to clients across industries, through a combination of speed, agility and imagination. We believe that these three attributes will be the key guiding principles for us to navigate
our way to creating greater value for all our stakeholders.
We deliver a comprehensive range of solutions and services across multiple
domains and industries including healthcare, life sciences, insurance, manufacturing, banking, financial services, business administrative services, data management services, product and engineering solutions, retail, consumer packaged goods,
communications, energy, utility, media and entertainment. Our services include application development, application maintenance, business intelligence and analytics, cloud services, engineering design services, enterprise application
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solutions, enterprise mobility, infrastructure management services, product and engineering solutions, embedded systems, product verification and validation, verification and validation and
business process outsourcing, or BPO.
We are the first integrated technology and operations, or ITOPS company. ITOPS is a
business outcomes based model that adds certainty to our clients business. Through ITOPS, we enable our clients to optimize their business through a combination of process investment strategies, technology leverage, and BPO and provisioning.
Our core proposition of integrating technology and customer processes in a proprietary way has conformed to the changing customer needs and the ITOPS framework has helped us align better with the new-age business challenges of corporations. Our
ITOPS framework has helped us build solutions that address explicit client issues taking into account the market and industry context. We have also developed strong expertise in industry processes that enable us to drive more innovation and
technology capabilities to solve business challenges.
We have adopted a global delivery model for providing varied and complex
information technology-enabled, or IT-enabled, services to our global customers spread across multiple locations. We combine a single business management system with best industry practices, models and standards. We have tailored delivery models
encompassing pure offshore, pure onsite, pure near-shore and blended models (onsite, near-shore, offshore) to meet the specific requirements of our clients.
In our pursuit to be a differentiated value provider to clients and better address their business imperatives, we rebranded our identity which
is represented by a new logo, and renewed vision, mission and values. Our mission is to be an organization that strives for superior and predictable financial performance through focused and innovative execution excellence delivered by a team that
believes in high performance and all through its journey, remains socially conscious.
We were founded in 1986. We are incorporated in
Pennsylvania and our principal executive office is located at Bridgewater, New Jersey. We have operations in India, Canada, the United States, Belgium, Denmark, France, Finland, Germany, Ireland, Netherlands, Sweden, Switzerland, Luxemburg, Mexico,
Hungary, Singapore, Malaysia, Japan, Australia, the United Arab Emirates, South Africa, China, Mauritius and the United Kingdom.
You can
get more information regarding our business and industry by reading our most recent Annual Report on Form 10-K and the other reports we file with the SEC. See Where You Can Find More Information and Incorporation of Certain
Documents by Reference.
Corporate Information
Our principal executive offices are located at 100 Somerset Corporate Blvd., Bridgewater, New Jersey 08807, and our telephone number is
(908) 219-8050. Our website address is www.igate.com. The information on, or that can be accessed through, our website is not part of this prospectus.
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USE OF PROCEEDS
Unless otherwise indicated in a prospectus supplement, we anticipate that the net proceeds from our sale of any securities will be used for
general corporate purposes, including working capital, acquisitions, retirement of debt and other business opportunities. In the case of sales by the selling shareholders, we will not receive any of the proceeds from such sales.
RATIOS OF EARNINGS TO FIXED CHARGES AND COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS
Our ratio of earnings to fixed charges were 3.31 for the nine months ended September 30, 2014 and 3.01, 2.55, 2.63, 65.75 and 46.39 for
the fiscal years ended December 31, 2013, 2012, 2011, 2010 and 2009, respectively. Our ratio of earnings to combined fixed charges and preferred stock dividends were 1.82 for the nine months ended September 30, 2014 and 2.01, 1.75, 1.63,
65.75 and 46.39 for the fiscal years ended December 31, 2013, 2012, 2011, 2010 and 2009, respectively. Earnings consists of net profit from continuing operations before income tax expense and fixed charges. Fixed charges
consist of interest expense, capitalized interest and the portion of rents that we believe to be representative of the interest factor.
DESCRIPTION OF SECURITIES
We may offer shares of our common stock and preferred stock, various series of debt securities, warrants, units or subscription rights to
purchase any of such securities from time to time in one or more offerings under this prospectus at prices and on terms to be determined by market conditions at the time of the offering. This prospectus provides you with a general description of the
securities that we may offer. In connection with each offering, we will provide a prospectus supplement that will describe the specific amounts, prices and terms of the securities being offered, including, to the extent applicable:
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designation or classification; |
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aggregate offering price; |
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rates and times of payment of dividends; |
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redemption, conversion or exchange terms; |
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conversion or exchange prices or rates and any provisions for changes to or adjustments in the conversion or exchange prices or rates and in the securities or other property receivable upon conversion or exchange;
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voting or other rights; and |
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important federal income tax considerations. |
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The prospectus supplement also may add, update or change information contained in this prospectus
or in documents we have incorporated by reference. However, no prospectus supplement will offer a security that is not included in the Registration Statement at the time of its effectiveness or offer a security of a type that is not described in
this prospectus.
This prospectus may not be used to consummate a sale of securities unless it is accompanied by a prospectus
supplement.
DESCRIPTION OF CAPITAL STOCK
Our authorized capital stock consists of 700,000,000 shares of common stock, par value $0.01 per share, 1 share of Series A Preferred
Stock, without par value, and 19,519,999 shares of additional Preferred Stock, without par value. As of October 16, 2014, 59,050,607 shares of our common stock were outstanding.
Common Stock
Holders of our common stock
are entitled to receive dividends when and as declared by our board of directors, or the Board, out of funds legally available. Holders of our common stock are entitled to one vote for each share on all matters voted on by shareholders, including
the election of directors and are not entitled to cumulate their votes in the election of directors. Holders of our common stock do not have any conversion, redemption or preemptive rights. In the event of our dissolution, liquidation or winding up,
holders of our common stock are entitled to share ratably in any assets remaining after the satisfaction in full of the prior rights of creditors and the aggregate liquidation preference of any preferred stock then outstanding. The rights,
preferences and privileges of the holders of our common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of preferred stock that we may designate and issue in the future. All shares of common
stock issued or to be issued shall be alike in every particular. All outstanding shares of our common stock are, and any shares of common stock that we may issue in the future will be, fully paid and non-assessable.
Preferred Stock
We may issue any class
of preferred stock in any series. Our Board has the authority to establish and designate series, and to fix the number of shares included in each such series and the variations in the relative rights, preferences, limitations and special rights, if
any, of the shares of such series. Shares of each series when issued shall be designated to distinguish the shares of each series from shares of all other series.
DESCRIPTION OF DEBT SECURITIES
This prospectus describes certain general terms and provisions of our debt securities. When we offer to sell a particular series of debt
securities, we will describe the specific terms of the series in a supplement to this prospectus. The following description of debt securities will apply to the debt securities offered by this prospectus unless we provide otherwise in the applicable
prospectus supplement. The applicable prospectus supplement for a particular series of debt securities may specify different or additional terms.
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We may offer under this prospectus secured or unsecured debt securities. The debt securities may
be either senior debt securities, senior subordinated debt securities or subordinated debt securities. The debt securities offered hereby will be issued under an indenture between us and a trustee. A form of indenture, which will be qualified under,
subject to, and governed by, the Trust Indenture Act of 1939, as amended, is filed as an exhibit to the registration statement.
General
The terms of each series of debt securities will be established by or pursuant to a resolution of the Board and detailed or determined in the
manner provided in a resolution of the Board, an officers certificate or by an indenture. The particular terms of each series of debt securities will be described in a prospectus supplement relating to the series, including any pricing
supplement.
We can issue debt securities that may be in one or more series with the same or various maturities, at par, at a premium or
at a discount. We will set forth in a prospectus supplement, including any pricing supplement, relating to any series of debt securities being offered, the initial offering price, the aggregate principal amount and the following terms of the debt
securities:
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the title of the debt securities; |
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the price or prices (expressed as a percentage of the aggregate principal amount) at which we will sell the debt securities; |
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any limit on the aggregate principal amount of the debt securities; |
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the date or dates on which we will pay the principal on the debt securities; |
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the rate or rates (which may be fixed or variable) per annum or the method used to determine the rate or rates (including any commodity, commodity index, stock exchange index or financial index) at which the debt
securities will bear interest, the date or dates from which interest will accrue, the date or dates on which interest will commence and be payable and any regular record date for the interest payable on any interest payment date; |
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the place or places where the principal of, and premium and interest on, the debt securities will be payable; |
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the terms and conditions upon which we may redeem the debt securities; |
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any obligation we have to redeem or purchase the debt securities pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities; |
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the dates on which and the price or prices at which we will repurchase the debt securities at the option of the holders of debt securities and other detailed terms and provisions of these repurchase obligations;
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the minimum denominations in which the debt securities will be issued, if other than minimum denominations of $1,000 and any integral multiple in excess thereof; |
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities; |
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the portion of principal amount of the debt securities payable upon declaration of acceleration of the maturity date, if other than the principal amount; |
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the currency of denomination of the debt securities; |
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the designation of the currency, currencies or currency units in which payment of principal of, and premium and interest on, the debt securities will be made; |
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if payments of principal of, and premium or interest on, the debt securities will be made in one or more currencies or currency units other than that or those in which the debt securities are denominated, the manner in
which the exchange rate with respect to these payments will be determined; |
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the manner in which the amounts of payment of principal of, and premium or interest on, the debt securities will be determined, if these amounts may be determined by reference to an index based on a currency or
currencies other than that in which the debt securities are denominated or designated to be payable or by reference to a commodity, commodity index, stock exchange index or financial index; |
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any provisions relating to any security provided for the debt securities; |
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any addition to or change in the events of default described in this prospectus or in the indenture with respect to the debt securities and any change in the acceleration provisions described in this prospectus or in
the indenture with respect to the debt securities; |
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any addition to or change in the covenants described in this prospectus or in the indenture with respect to the debt securities; |
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any other terms of the debt securities, which may modify or delete any provision of the indenture as it applies to that series; and |
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities. |
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We may issue debt securities that are exchangeable and/or convertible into shares of our common
stock or any class or series of preferred stock. The terms, if any, on which the debt securities may be exchanged and/or converted will be set forth in the applicable prospectus supplement. Such terms may include provisions for conversion, either
mandatory, at the option of the holder or at our option, in which case the number of shares of common stock, preferred stock or other securities to be received by the holders of debt securities would be calculated as of a time and in the manner
stated in the prospectus supplement.
We may issue debt securities that provide for an amount less than their stated principal amount to
be due and payable upon declaration of acceleration of their maturity pursuant to the terms of the indenture. We will provide you with information on the federal income tax considerations and other special considerations applicable to any of these
debt securities in the applicable prospectus supplement.
If we denominate the purchase price of any of the debt securities in a foreign
currency or currencies or a foreign currency unit or units, or if the principal of and any premium and interest on any series of debt securities is payable in a foreign currency or currencies or a foreign currency unit or units, we will provide you
with information on the restrictions, elections, general tax considerations, specific terms and other information with respect to that issue of debt securities and such foreign currency or currencies or foreign currency unit or units in the
applicable prospectus supplement.
Payment of Interest and Exchange
Each debt security will be represented by either one or more global securities registered in the name of The Depository Trust Company, as
Depositary, or a nominee of the Depositary (we will refer to any debt security represented by a global debt security as a book-entry debt security), or a certificate issued in definitive registered form (we will refer to any debt security
represented by a certificated security as a certificated debt security), as described in the applicable prospectus supplement.
Certificated Debt
Securities
You may transfer or exchange certificated debt securities at the trustees office or paying agencies in accordance
with the terms of the indenture. No service charge will be made for any transfer or exchange of certificated debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection with a
transfer or exchange.
You may transfer certificated debt securities and the right to receive the principal of, and premium and interest
on, certificated debt securities only by surrendering the old certificate representing those certificated debt securities and either we or the trustee will issue a new certificate to the new holder.
Book-Entry Debt Securities
We may issue
the debt securities of a series in the form of one or more book-entry debt securities that would be deposited with a depositary or its nominee identified in the prospectus
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supplement. We may issue book-entry debt securities in either temporary or permanent form. We will describe in the prospectus supplement the terms of any depositary arrangement and the rights and
limitations of owners of beneficial interests in any book-entry debt security.
DESCRIPTION OF WARRANTS
We may issue warrants to purchase debt securities, common stock, preferred stock or other securities or any combination of the
foregoing. We may issue warrants independently or together with other securities. Warrants sold with other securities may be attached to or separate from the other securities. We will issue warrants under one or more warrant agreements between us
and a warrant agent that we will name in the prospectus supplement.
The prospectus supplement relating to any warrants that we may offer
will include specific terms relating to the offering. We will file the form of any warrant agreement with the SEC, and you should read the warrant agreement for provisions that may be important to you. The prospectus supplement will include some or
all of the following terms:
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the title of the warrants; |
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the aggregate number of warrants offered; |
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the designation, number and terms of the debt securities, common stock, preferred stock or other securities purchasable upon exercise of the warrants, and procedures by which those numbers may be adjusted;
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the exercise price of the warrants; |
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the dates or periods during which the warrants are exercisable; |
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the designation and terms of any securities with which the warrants are issued; |
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if the warrants are issued as a unit with another security, the date, if any, on and after which the warrants and the other security will be separately transferable; |
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if the exercise price is not payable in U.S. dollars, the foreign currency, currency unit or composite currency in which the exercise price is denominated; |
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any minimum or maximum amount of warrants that may be exercised at any one time; |
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any terms, procedures and limitations relating to the transferability, exchange, exercise, amendment or termination of the warrants; and |
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any adjustments to the terms of the warrants resulting from the occurrence of certain events or from the entry into or consummation by us of certain transactions. |
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DESCRIPTION OF UNITS
As specified in any applicable prospectus supplement, we may issue units consisting of one or more warrants, subscription rights, debt
securities, shares of preferred stock, shares of common stock or any combination of such securities.
DESCRIPTION OF SUBSCRIPTION RIGHTS
As specified in any applicable prospectus supplement, we may issue subscription rights consisting of one or more debt securities, shares of
preferred stock, shares of common stock or any combination of such securities.
SELLING SHAREHOLDERS
Selling Shareholders for the Secondary Offering of up to 23,384,095 Shares of Common Stock
The registration statement, of which this prospectus forms a part, relates to the registration and possible resale of up to 23,384,095 shares
of our common stock by funds advised by Viscaria Limited, or Viscaria, a company backed by funds advised by Apax Partners LLP and Apax Partners, L.P., collectively referred to as Apax Partners. The common stock being offered by the selling
shareholders includes 21,730,290 shares of our common stock issued by us upon conversion of the 330,000 shares of our Series B Preferred Stock, or the Series Preferred Stock, by the selling shareholders, which conversion occurred on November 4,
2014.
In connection with Viscarias investment in the Series B Preferred Stock and pursuant to the Investor Rights Agreement, dated
February 1, 2011, entered into between the Company and Viscaria, or the Investor Rights Agreement, Salim Nathoo, a Partner and Co-Head of the Global Telecom and Technology team at Apax Partners LLP, an affiliate of Viscaria, has been appointed
and currently serves as a member of the Board. In addition to the common stock issued upon the conversion of the Series B Preferred Stock, Viscaria holds 1,653,805 shares of the Companys common stock.
The following table sets forth information with respect to the beneficial ownership of our common stock held as of November 14, 2014 by
Viscaria, the number of shares being offered hereby and information with respect to shares to be beneficially owned by the funds advised by Apax Partners assuming all shares of common stock held by or for the benefit of the selling shareholders and
all the shares registered hereunder are sold.
The term selling shareholders includes the shareholders listed in the table
below and their transferees, pledgees, donees, assignees or other successors. We are paying all of the expenses in connection with such registration and the sale of the shares, other than selling commissions and the fees and expenses of counsel and
other advisors to the selling shareholders. Information concerning the selling shareholders may change from time to time, and any changed information will be set forth if and when required in prospectus supplements or other appropriate forms
permitted to be used by the SEC. Except as otherwise disclosed herein, to our knowledge, none of the selling shareholders is a broker-dealer and/or affiliated with a broker-dealer.
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Unless otherwise indicated, the selling shareholders have sole voting and investment power with
respect to their shares of common stock. All of the information contained in the table below is based solely upon information provided to us by the selling shareholders or otherwise known by us. In addition to the shares offered hereby, the selling
shareholders may otherwise beneficially own our shares of common stock as a result of, among others, open market purchases, which information is not obtainable by us without undue effort and expense. The selling shareholders may have sold,
transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time or from time to time since the date on which the information regarding the shares beneficially owned was last known by us, all or a portion of the
shares beneficially owned in transactions exempt from the registration requirements of the Securities Act.
For the purposes of the
following table, the number of shares of our common stock beneficially owned has been determined in accordance with Rule 13d-3 under the Exchange Act, and such information is not necessarily indicative of beneficial ownership for any other
purpose. Under Rule 13d-3, beneficial ownership includes any shares as to which a selling shareholder has sole or shared voting power or investment power and also any shares which that selling shareholder has the right to acquire within
60 days of the date of this prospectus through the exercise of any stock option.
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Name of Selling Shareholder |
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Number of Shares Beneficially Owned Prior to the Offering |
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Number of Shares Offered |
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Number of Shares Beneficially Owned After the Offering |
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% of Common Stock Beneficially Owned After the Offering (1) |
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Viscaria Limited |
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23,384,095 |
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23,384,095 |
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Lemesou |
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77 Elia House |
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P.C. 2121, Nicosia, Cyprus |
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(1) |
Assumes that Viscaria disposes of all the shares of common stock covered by this prospectus and does not acquire beneficial ownership of any additional shares. The registration of these shares does not necessarily mean
Viscaria will sell all or any portion of the shares covered by this prospectus. |
Material Relationships
Series B Preferred Conversion and Exchange Agreement
As referenced above, Viscaria, a company backed by funds advised by Apax Partners, made a preferred stock investment pursuant to a Securities
Purchase Agreement, dated as of January 10, 2011, or the Viscaria Purchase Agreement, in us, the proceeds of which were used to pay a portion of the cash consideration for the acquisition of a majority stake in IGATE Computer Systems Limited
(formerly known as Patni Computer Systems Limited), or IGATE Computer. Under the Viscaria Purchase Agreement, we agreed to sell to Viscaria, in a private placement, up to 480,000 shares of Series B Preferred Stock, for an aggregate purchase price of
up to $480 million. Viscaria agreed to purchase the shares of Series B Preferred Stock at two
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separate closings: (i) $210 million of Series B Preferred Stock at the first closing (which occurred on February 1, 2011), and (ii) an additional $120 million of Series B Preferred
Stock at a second closing (which occurred on May 9, 2011). The Series B Preferred Stock, among other things, provided for a holder option to convert the outstanding principal plus accrued and unpaid dividends into our common stock at any time
and from time to time at the then current Conversion Price.
On November 4, 2014, the Company entered into a Conversion and Exchange
Agreement, or the Conversion Agreement, with Viscaria pursuant to which Viscaria exercised its option to convert its 330,000 shares of 8% Series B Preferred Stock into 21,730,290 shares of the Companys common stock. In connection with the
conversion, the Company agreed to pay Viscaria an amount in cash equal to $80,000,000. The Conversion Agreement contains customary representations and warranties by the Company and Viscaria, including those relating to corporate authority, no
conflicts and customary securities law-related representations.
Investor Rights Agreement
Upon entering into the Conversion Agreement, the Company and Viscaria acknowledged and agreed that the terms of the and provisions of the
Investor Rights Agreement will continue in full force and effect, including all terms and provisions applicable to the shares of common stock issued upon conversion of the Series B Preferred Shares. As contemplated by the Viscaria Purchase
Agreement, we entered into the Investor Rights Agreement with Viscaria pursuant to which, among other things, we have agreed, so long as Viscaria and certain holders affiliated with Viscaria in the aggregate hold at least one third of
Viscarias initial equity stake as of the latest applicable closing under the Viscaria Purchase Agreement, to grant Viscaria certain rights, including the right to designate at least one director to our Board if the number of directors on the
Board is nine or less, and, subject to applicable law and exchange listing rules, two directors to our Board if the number of directors is ten or more. Additionally, so long as Viscaria and certain other holders affiliated with it maintain at least
one half of Viscarias initial equity investment in us, (a) such holders, the Majority Investor Holders, will be entitled to certain (i) preemptive and rights of first offer on future equity and/or debt issuances by us and
(ii) customary registration rights with respect to the common stock issued upon the conversion of the Series B Preferred Stock, and (b) the consent of the majority of the Majority Investor Holders will be required for:
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any redemption, purchase or other acquisition of common stock by the Company and certain dividends or payments to holders of our other equity interests exceeding a certain threshold or to management or related parties;
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subject to certain exceptions, the authorization, issuance or entrance into any agreement providing for the issuance of any debt or equity securities of the Company or any of our subsidiaries; |
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certain reclassifications or recapitalizations of securities of the Company or our subsidiaries that would adversely affect the rights of the former holders of the Series B Preferred Stock; |
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disposal of any equity interest in any subsidiary and certain asset disposals exceeding a specified threshold; |
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certain acquisitions exceeding a specified threshold; |
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the entrance into certain material transactions involving IGATE Computer or the sale of IGATE Computer securities; |
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certain changes in our line of business or other activities or lines of business reasonably related thereto and the line of business of any of our subsidiaries, including IGATE Computer; |
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the entrance into, amendment, modification or supplementation of certain agreements with any parties related to us or any of our wholly-owned subsidiaries except for employment arrangements and benefit programs approved
by our Board and any agreement below a certain threshold; |
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the creation, incurrence, guarantee, assumption or issuance by us or any of our subsidiaries of certain additional indebtedness; |
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the hiring or termination of our Chief Executive Officer or our Chief Financial Officer; |
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the amendment or rescission of any provision of our or any of our subsidiaries certificate of incorporation, articles of incorporation, by-laws or similar organizational documents that would directly conflict with
the terms and provisions of the Investor Rights Agreement or the Statement with Respect to Shares; |
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the voluntary delisting of our common stock from The NASDAQ Stock Market; |
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certain increases in the size of our Board; |
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the voluntary commencement of certain insolvency events; and |
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the agreement to any of the foregoing. |
Our failure to comply with certain provisions of the
Investor Rights Agreement (including requirements relating to Viscarias nominees to our Board, consent rights and registration rights) may result, if not cured, in certain increases to the dividend accrual rate of the Series B Preferred Stock
and, in the event we fail to make any required redemption payment, subject to applicable law and exchange listing rules, increased representation of the former holders of the Series B Preferred Stock on our Board, in each case, for the duration of
such noncompliance. In addition, in the event we fail to make any required redemption payment, the Majority Investor Holders may also have consent rights with respect to (a) any change of control, (b) any issuance, disposition,
acquisition, assumption or incurrence which would otherwise be permitted, (c) our and our subsidiaries annual budget, and (d) the approval of the employment or termination of any member of our senior management.
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Voting and Standstill Agreement
In connection with the signing of the Viscaria Purchase Agreement described above, we entered into a voting and standstill agreement or the
Voting and Standstill Agreement, dated as of January 10, 2011, with Viscaria, Messrs. Sunil Wadhwani and Ashok Trivedi and certain entities affiliated with such shareholders, or collectively, the Shareholders. As of the first closing under the
Viscaria Purchase Agreement, we entered into an amended and restated voting and standstill agreement, or the Amended and Restated Voting and Standstill Agreement, dated as of February 1, 2011, with Viscaria and the Shareholders for the purpose
of amending and restating the Voting and Standstill Agreement in order to reflect the final agreement between the Shareholders and Viscaria with respect to matters covered thereby. Pursuant to the Amended and Restated Voting and Standstill
Agreement, the Shareholders have agreed to vote in favor of certain transactions and certain rights associated with the Series B Preferred Stock, including the right to designate a director to our Board. Further, subject to certain ownership
thresholds set forth in the Amended and Restated Voting and Standstill Agreement, (i) Viscaria agreed to vote in favor of the election of each of Messrs. Sunil Wadhwani and Ashok Trivedi to our Board and (ii) if a vote of the holders of
our common stock is required to elect such nominees (whether due to the full conversion into common stock of all outstanding shares of Series B Preferred Stock or otherwise), the Shareholders have agreed to vote in favor of the election of the
person(s) nominated by Viscaria to our Board. All such parties have agreed to vote against any action, agreement or transaction not consistent with the foregoing.
PLAN OF DISTRIBUTION
We and/or the selling shareholders, if applicable, may sell the securities in one or more of the following ways (or in any combination) from
time to time:
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on NASDAQ, in the over-the-counter market or on any other national securities exchange on which our shares are listed or traded; |
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in privately negotiated transactions; |
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through underwriters or dealers; |
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in a block trade in which a broker-dealer will attempt to sell the offered shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
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through purchases by a broker-dealer as principal and resale by the broker-dealer for its account pursuant to this prospectus; |
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in ordinary brokerage transactions and transactions in which the broker solicits purchasers; |
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through the writing of options (including put or call options), whether the options are listed on an options exchange or otherwise; |
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directly to a limited number of purchasers or to a single purchaser; or |
Each time we offer and sell securities under this prospectus, we will file a
prospectus supplement. The prospectus supplement will state the terms of the offering of the securities, including:
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the name or names of any underwriters, dealers or agents; |
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the purchase price of such securities and the proceeds to be received by IGATE, if any; |
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any underwriting discounts or agency fees and other items constituting underwriters or agents compensation; |
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any initial public offering price; |
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any discounts or concessions allowed or reallowed or paid to dealers; and |
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any securities exchanges on which the securities may be listed. |
Any initial public offering
price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If we and/or the selling
shareholders, if applicable, use underwriters in the sale, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including:
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negotiated transactions; |
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at a fixed public offering price or prices, which may be changed; |
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at market prices prevailing at the time of sale; |
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at prices related to prevailing market prices; or |
Unless otherwise stated in a prospectus supplement, the obligations of
the underwriters to purchase any securities will be conditioned on customary closing conditions and the underwriters will be obligated to purchase all of such series of securities, if any are purchased.
We and/or the selling shareholders, if applicable, may sell the securities through agents from time to time. The prospectus supplement will
name any agent involved in the offer or sale of the securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
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We and/or the selling shareholders, if applicable, may authorize underwriters, dealers or agents
to solicit offers by certain purchasers to purchase the securities from IGATE at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the
future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions we pay for solicitation of these contracts.
In offering the shares covered by this prospectus, the selling shareholders, and any broker-dealers and any other participating broker-dealers
who execute sales for the selling shareholders, may be deemed to be underwriters within the meaning of the Securities Act in connection with these sales. Any profits realized by the selling shareholders and the compensation of such
broker-dealers may be deemed to be underwriting discounts and commissions.
Underwriters and agents may be entitled under agreements
entered into with IGATE and/or the selling shareholders, if applicable, to indemnification by IGATE and/or the selling shareholders, if applicable, against certain civil liabilities, including liabilities under the Securities Act, or to contribution
with respect to payments which the underwriters or agents may be required to make. Underwriters and agents may be customers of, engage in transactions with, or perform services for IGATE and its affiliates in the ordinary course of business.
Each series of securities will be a new issue of securities and will have no established trading market other than the common stock which is
listed on NASDAQ. Any underwriters to whom securities are sold for public offering and sale may make a market in the securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice.
The securities, other than the common stock, may or may not be listed on a national securities exchange.
EXPERTS
The consolidated financial statements of IGATE Corporation appearing in IGATE Corporations Annual Report (Form 10-K) for the year ended
December 31, 2013 and the effectiveness of IGATE Corporations internal control over financial reporting as of December 31, 2013, have been audited by Ernst & Young Associates LLP, an independent registered public accounting
firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such reports given on the authority of such firm as
experts in accounting and auditing.
LEGAL MATTERS
Pepper Hamilton LLP will provide us with an opinion as to certain legal matters in connection with the securities being offered hereby.
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PART II
Information Not Required in Prospectus
Item 14. |
Other Expenses of Issuance and Distribution |
The following table sets forth the expenses
(other than underwriting discounts and commissions) to be incurred by us in connection with the registration, issuance and distribution of the securities described in this registration statement being registered hereby.
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SEC registration fee |
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Printing expenses |
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** |
Legal fees and expenses |
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Accounting fees and expenses |
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Transfer agent and trustee fees and expenses |
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Rating agency fees |
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Miscellaneous |
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** |
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Total |
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** |
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* |
In accordance with Rules 456(b) and 457(r) under the Securities Act, we are deferring payment of the entire registration fee. |
** |
An estimate of the aggregate amount of these expenses will be reflected in the applicable prospectus supplement or as an exhibit to a Current Report on Form 8-K in reference to the specific offering of securities, if
any, to which it relates. |
Item 15. |
Indemnification of Directors and Officers |
Subchapter D of Chapter 17 of the
Pennsylvania Business Corporation Law, or the PBCL, provides in general that a corporation may indemnify any person, including its directors, officers and employees, who was or is a party or is threatened to be made a party to any threatened,
pending or completed action or proceeding, whether civil, criminal, administrative or investigative (including actions by or in the right of the corporation) by reason of the fact that he or she is or was a representative of or serving at the
request of the corporation, against expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him or her in connection with the action or proceeding if he or she is determined by
the board or directors, or in certain circumstances by independent legal counsel or the shareholders, to have 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 corporation and,
with respect to any criminal
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proceeding, had no reason to believe his or her conduct was unlawful. In the case of actions by or in the right of the corporation, indemnification is not permitted in respect of any claim, issue
or matter as to which the person has been adjudged to be liable to the corporation except to the extent a court determines that the person is fairly and reasonably entitled to indemnification. In any case, to the extent that the person has been
successful on the merits or otherwise in defense of any claim, issue or matter, he or she shall be indemnified against expenses (including attorneys fees) actually and reasonably incurred by him or her in connection therewith. Subchapter D of
Chapter 17 also provides that the indemnification permitted or required thereby is not exclusive of any other rights to which a person seeking indemnification may be entitled.
Article 9 of our Third Amended and Restated Articles of Incorporation provides that we will indemnify and hold harmless to the full extent
permitted by law each person who was or is made a party or is threatened to be made a party to or is otherwise involved in (as witness or otherwise) any threatened, pending or completed action, suit, or proceeding, whether civil, criminal,
administrative or investigative and whether or not by or in the right of the Company or otherwise, or hereinafter, a proceeding, by reason of the fact that he or she, or a person of whom he or she is the heir, executor or administrator, is or was a
director or executive officer of the Company or is or was serving at the request of the Company as a director, officer or trustee of another corporation or of a partnership, joint venture, trust or other enterprise (including without limitation
service with respect to employee benefit plans), or where the basis of such proceeding is any alleged action or failure to take any action by such person while acting in an official capacity as a director or executive officer of the Company, or in
any other capacity on behalf of the Company while such person is or was serving as a director or executive officer of the Company, against all expenses, liability and loss, including but not limited to attorneys fees, judgments, fines, excise
taxes or penalties and amounts paid or to be paid in settlement (whether with or without court approval), actually and reasonably incurred or paid by such person in connection therewith.
The right to indemnification is a contract right and includes the right to be paid by the Company for expenses incurred in defending any such
proceeding (or part thereof) or in enforcing his or her rights to indemnification in advance of the final disposition thereof promptly after our receipt of a request stating in reasonable detail the expenses incurred; provided, however, that to the
extent required by law, the payment of such expenses incurred by a director or executive officer of the Company in advance of the final disposition of a proceeding shall be made only upon receipt of an undertaking, by or on behalf of such person, to
repay all amounts so advanced if and to the extent it shall ultimately be determined by a court that he or she is not entitled to be indemnified by the Company.
The Articles of Incorporation also provide, in accordance with Section 1713 of the PBCL, that a director of the Company shall not be
personally liable for monetary damages for any action taken, or any failure to take any action, unless the director has breached or failed to perform the duties of his or her office under Subchapter B of Chapter 17 of the PBCL (relating to standard
of conduct and justifiable reliance) and the breach or failure to perform constitutes self-dealing, willful misconduct or recklessness. This limitation on the personal liability of directors of the Company does not eliminate or limit (i) the
responsibility or liability of a director pursuant to any criminal statute or (ii) the liability of a director for the payment of taxes pursuant to local, state or federal law.
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The limitation of liability and indemnification provisions in our Articles of Incorporation may
discourage shareholders from bringing a lawsuit against directors for breach of their fiduciary duty. These provisions may also have the effect of reducing the likelihood of derivative litigation against our directors and officers, even though such
an action, if successful, might otherwise benefit us and our shareholders. However, these provisions do not limit or eliminate our rights, or those of any shareholder, to seek non-monetary relief such as injunction or rescission in the event of a
breach of a directors duty of care. The provisions will not alter the liability of directors under the federal securities laws.
A list of exhibits filed herewith is contained in the exhibit index that
immediately precedes such exhibits and is incorporated herein by reference.
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 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in
the effective registration statement;
(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 (i), (ii) and (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.
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(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; or
(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;
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(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) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing
of the registrants annual report pursuant to Section 13(a) or 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans 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) The undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of
the subscription period, to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any
subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(8) 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 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 Act and will be governed by the final adjudication of such issue.
(9) The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act
under subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under Section 305(b)(2) of the Act.
II-5
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 Bridgewater, New Jersey on December 4, 2014.
|
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|
IGATE Corporation |
|
|
By: |
|
/s/ Ashok Vemuri |
Name: |
|
Ashok Vemuri |
Title: |
|
President, Chief Executive Officer and Director |
POWER OF ATTORNEY
We, the undersigned officers and directors of IGATE Corporation, a Pennsylvania corporation, or the Corporation, hereby constitute and appoint
Mukund Srinath and Prashanth Idgunji and each of them, the true and lawful agents and attorneys-in-fact of the undersigned with full power and authority in said agents and attorneys-in-fact, and in any one or more of them, to sign for the
undersigned and in their respective names as an officer/director of the Corporation, any and all amendments (including post-effective amendments) to this registration statement on Form S-3 (or any other registration statement for the same offering
that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act) and to file the same, with all exhibits thereto and other documents in connection therewith, with the SEC, and with full power of substitution; hereby ratifying
and confirming all that each of said attorneys-in-fact, or his substitute or substitutes, may do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the
capacities indicated on December 4, 2014.
|
|
|
|
|
Name |
|
|
|
Title |
|
|
|
/s/ Ashok Vemuri
Ashok Vemuri |
|
|
|
President, Chief Executive Officer and Director (Principal Executive Officer) |
|
|
|
/s/ Sujit Sircar
Sujit Sircar |
|
|
|
Executive Vice President and Chief Financial Officer (Principal Financial Officer) |
|
|
|
/s/ Prashanth Idgunji
Prashanth Idgunji |
|
|
|
Chief Accounting Officer (Principal Accounting Officer) |
|
|
|
|
|
|
|
|
/s/ Sunil Wadhwani
Sunil Wadhwani |
|
|
|
Co-Chairman of the Board and Director |
|
|
|
/s/ Ashok Trivedi
Ashok Trivedi |
|
|
|
Co-Chairman of the Board and Director |
|
|
|
/s/ Martin G. McGuinn
Martin G. McGuinn |
|
|
|
Director |
|
|
|
/s/ Goran Lindahl
Goran Lindahl |
|
|
|
Director |
|
|
|
/s/ W. Roy Dunbar
W. Roy Dunbar |
|
|
|
Director |
|
|
|
/s/ Salim Nathoo
Salim Nathoo |
|
|
|
Director |
|
|
|
/s/ Naomi O. Seligman
Naomi O. Seligman |
|
|
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Director |
|
|
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/s/ William G. Parrett
William G. Parrett |
|
|
|
Director |
EXHIBIT INDEX
|
|
|
1.1* |
|
Form of Underwriting Agreement |
|
|
4.1 |
|
Third Amended and Restated Articles of Incorporation of the Company, dated May 5, 2011, is incorporated by reference to Exhibit 3.1 to the Companys Current Report on Form 8-K, filed on May 11, 2011 |
|
|
4.2 |
|
Amended and Restated Bylaws of the Company are incorporated by reference to Exhibit 3.2 to the Companys Quarterly Report on Form 10-Q, filed on August 14, 2000 |
|
|
4.3 |
|
Specimen of Stock Certificate is incorporated by reference to Exhibit 4.1 to the Companys Registration Statement on Form S-1, Commission File No. 333-14169, filed on November 19, 1996 |
|
|
4.4 |
|
Registration Rights Agreement, between the Company and the Selling Shareholders named therein, dated as of August 17, 2010, is incorporated by reference to Exhibit 4.2 to the Companys Registration Statement on Form S-3,
filed on October 20, 2010 |
|
|
4.5 |
|
Investor Rights Agreement, dated as of February 1, 2011, by and among the Company and Viscaria Limited, is incorporated by reference to Exhibit 10.1 to the Companys Current Report on Form 8-K, filed on February 4,
2011 |
|
|
4.6* |
|
Form of Preferred Stock Certificate |
|
|
4.7* |
|
Form of any Certificate of Designation setting forth the preferences and rights with respect to any preferred stock issued hereunder |
|
|
4.8 |
|
Form of Indenture |
|
|
4.9* |
|
Form of Debt Securities |
|
|
4.10* |
|
Form of Warrant Agreement |
|
|
4.11* |
|
Form of Warrant |
|
|
4.12* |
|
Form of Unit Agreement |
|
|
4.13* |
|
Form of Unit |
|
|
4.14* |
|
Form of Subscription Rights Agreement |
|
|
4.15* |
|
Form of Subscription Rights |
|
|
5.1 |
|
Opinion of Pepper Hamilton LLP |
|
|
12.1 |
|
Calculation of Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends |
|
|
23.1 |
|
Consent of Ernst & Young Associates LLP |
|
|
23.2 |
|
Consent of Pepper Hamilton LLP (included in the opinion filed as Exhibit 5.1) |
|
|
24.1 |
|
Power of attorney (included on the signature page of this registration statement) |
|
|
25.1 |
|
Form T-1 Statement of Eligibility and Qualification under the Trust Indenture Act of 1939 of Wilmington Trust, National Association |
* |
To be filed by amendment or as an exhibit to a report pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act. |
Final Form of Indenture
Exhibit 4.8
FORM OF
INDENTURE
IGATE CORPORATION
as Issuer
and
WILMINGTON TRUST, NATIONAL ASSOCIATION
as Trustee
Indenture
Dated as of ,
Debt Securities
TABLE OF CONTENTS
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Page |
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|
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ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE |
|
|
1 |
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Section 1.1. |
|
Definitions |
|
|
1 |
|
Section 1.2. |
|
Other Definitions |
|
|
4 |
|
Section 1.3. |
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Incorporation by Reference of Trust Indenture Act |
|
|
5 |
|
Section 1.4. |
|
Rules of Construction |
|
|
5 |
|
|
|
ARTICLE II THE SECURITIES |
|
|
5 |
|
Section 2.1. |
|
Issuable in Series |
|
|
5 |
|
Section 2.2. |
|
Establishment of Terms of Series of Securities |
|
|
6 |
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Section 2.3. |
|
Execution and Authentication |
|
|
8 |
|
Section 2.4. |
|
Registrar and Paying Agent |
|
|
9 |
|
Section 2.5. |
|
Paying Agent to Hold Money in Trust |
|
|
10 |
|
Section 2.6. |
|
Securityholder Lists |
|
|
10 |
|
Section 2.7. |
|
Transfer and Exchange |
|
|
10 |
|
Section 2.8. |
|
Mutilated, Destroyed, Lost and Stolen Securities |
|
|
11 |
|
Section 2.9. |
|
Outstanding Securities |
|
|
11 |
|
Section 2.10. |
|
Treasury Securities |
|
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12 |
|
Section 2.11. |
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Temporary Securities |
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12 |
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Section 2.12. |
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Cancellation |
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12 |
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Section 2.13. |
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Defaulted Interest |
|
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12 |
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Section 2.14. |
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Global Securities |
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13 |
|
Section 2.15. |
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CUSIP Numbers |
|
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14 |
|
Section 2.16. |
|
Persons Deemed Owners |
|
|
14 |
|
|
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ARTICLE III REDEMPTION |
|
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14 |
|
Section 3.1. |
|
Notice to Trustee |
|
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14 |
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Section 3.2. |
|
Selection of Securities to be Redeemed |
|
|
15 |
|
Section 3.3. |
|
Notice of Redemption |
|
|
15 |
|
Section 3.4. |
|
Effect of Notice of Redemption |
|
|
16 |
|
Section 3.5. |
|
Deposit of Redemption Price |
|
|
16 |
|
Section 3.6. |
|
Securities Redeemed in Part |
|
|
16 |
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|
|
ARTICLE IV COVENANTS |
|
|
16 |
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Section 4.1. |
|
Payment of Principal and Interest |
|
|
16 |
|
Section 4.2. |
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SEC Reports |
|
|
17 |
|
Section 4.3. |
|
Compliance Certificate |
|
|
17 |
|
Section 4.4. |
|
Stay, Extension and Usury Laws |
|
|
17 |
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ARTICLE V SUCCESSORS |
|
|
18 |
|
Section 5.1. |
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When Company May Merge, Etc. |
|
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18 |
|
Section 5.2. |
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Successor Corporation Substituted |
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18 |
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-i-
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Page |
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ARTICLE VI DEFAULTS AND REMEDIES |
|
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18 |
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Section 6.1. |
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Events of Default |
|
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18 |
|
Section 6.2. |
|
Acceleration of Maturity; Rescission and Annulment |
|
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20 |
|
Section 6.3. |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
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20 |
|
Section 6.4. |
|
Trustee May File Proofs of Claim |
|
|
21 |
|
Section 6.5. |
|
Trustee May Enforce Claims Without Possession of Securities |
|
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22 |
|
Section 6.6. |
|
Application of Money Collected |
|
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22 |
|
Section 6.7. |
|
Limitation on Suits |
|
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22 |
|
Section 6.8. |
|
Unconditional Right of Holders to Receive Principal and Interest |
|
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23 |
|
Section 6.9. |
|
Restoration of Rights and Remedies |
|
|
23 |
|
Section 6.10. |
|
Rights and Remedies Cumulative |
|
|
23 |
|
Section 6.11. |
|
Delay or Omission Not Waiver |
|
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23 |
|
Section 6.12. |
|
Control by Holders |
|
|
24 |
|
Section 6.13. |
|
Waiver of Past Defaults |
|
|
24 |
|
Section 6.14. |
|
Undertaking for Costs |
|
|
24 |
|
|
|
ARTICLE VII TRUSTEE |
|
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24 |
|
Section 7.1. |
|
Duties of Trustee |
|
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24 |
|
Section 7.2. |
|
Rights of Trustee |
|
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26 |
|
Section 7.3. |
|
Individual Rights of Trustee |
|
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27 |
|
Section 7.4. |
|
Trustees Disclaimer |
|
|
27 |
|
Section 7.5. |
|
Notice of Defaults |
|
|
27 |
|
Section 7.6. |
|
Reports by Trustee to Holders |
|
|
28 |
|
Section 7.7. |
|
Compensation and Indemnity |
|
|
28 |
|
Section 7.8. |
|
Replacement of Trustee |
|
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29 |
|
Section 7.9. |
|
Successor Trustee by Merger, Etc. |
|
|
29 |
|
Section 7.10. |
|
Eligibility; Disqualification |
|
|
30 |
|
Section 7.11. |
|
Preferential Collection of Claims Against Company |
|
|
30 |
|
|
|
ARTICLE VIII SATISFACTION AND DISCHARGE; DEFEASANCE |
|
|
30 |
|
Section 8.1. |
|
Satisfaction and Discharge of Indenture |
|
|
30 |
|
Section 8.2. |
|
Application of Trust Funds; Indemnification |
|
|
31 |
|
Section 8.3. |
|
Legal Defeasance of Securities of any Series |
|
|
32 |
|
Section 8.4. |
|
Covenant Defeasance |
|
|
33 |
|
Section 8.5. |
|
Repayment to Company |
|
|
34 |
|
Section 8.6. |
|
Reinstatement |
|
|
34 |
|
|
|
ARTICLE IX AMENDMENTS AND WAIVERS |
|
|
34 |
|
Section 9.1. |
|
Without Consent of Holders |
|
|
34 |
|
Section 9.2. |
|
With Consent of Holders |
|
|
35 |
|
Section 9.3. |
|
Limitations |
|
|
36 |
|
Section 9.4. |
|
Compliance with Trust Indenture Act |
|
|
36 |
|
Section 9.5. |
|
Revocation and Effect of Consents |
|
|
36 |
|
Section 9.6. |
|
Notation on or Exchange of Securities |
|
|
37 |
|
Section 9.7. |
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Trustee Protected |
|
|
37 |
|
-ii-
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Page |
|
|
|
ARTICLE X MISCELLANEOUS |
|
|
37 |
|
Section 10.1. |
|
Trust Indenture Act Controls |
|
|
37 |
|
Section 10.2. |
|
Notices |
|
|
38 |
|
Section 10.3. |
|
Communication by Holders with Other Holders |
|
|
39 |
|
Section 10.4. |
|
Certificate and Opinion as to Conditions Precedent |
|
|
39 |
|
Section 10.5. |
|
Statements Required in Certificate or Opinion |
|
|
39 |
|
Section 10.6. |
|
Rules by Trustee and Agents |
|
|
39 |
|
Section 10.7. |
|
Legal Holidays |
|
|
39 |
|
Section 10.8. |
|
No Recourse Against Others |
|
|
40 |
|
Section 10.9. |
|
Counterparts |
|
|
40 |
|
Section 10.10. |
|
Governing Law |
|
|
40 |
|
Section 10.11. |
|
No Adverse Interpretation of Other Agreements |
|
|
40 |
|
Section 10.12. |
|
Successors |
|
|
40 |
|
Section 10.13. |
|
Severability |
|
|
40 |
|
Section 10.14. |
|
Table of Contents, Headings, Etc. |
|
|
40 |
|
Section 10.15. |
|
Securities in a Foreign Currency |
|
|
40 |
|
Section 10.16. |
|
Judgment Currency |
|
|
41 |
|
Section 10.17. |
|
Calculations |
|
|
41 |
|
Section 10.18. |
|
U.S.A. Patriot Act |
|
|
42 |
|
Section 10.19. |
|
Force Majeure |
|
|
42 |
|
|
|
ARTICLE XI SINKING FUNDS |
|
|
42 |
|
Section 11.1. |
|
Applicability of Article |
|
|
42 |
|
Section 11.2. |
|
Satisfaction of Sinking Fund Payments with Securities |
|
|
42 |
|
Section 11.3. |
|
Redemption of Securities for Sinking Fund |
|
|
43 |
|
-iii-
IGATE CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of , 20
|
|
|
|
|
|
§ 310(a)(1) |
|
|
7.10 |
|
(a)(2) |
|
|
7.10 |
|
(a)(3) |
|
|
Not Applicable |
|
(a)(4) |
|
|
Not Applicable |
|
(a)(5) |
|
|
7.10 |
|
(b) |
|
|
7.10 |
|
§ 311(a) |
|
|
7.11 |
|
(b) |
|
|
7.11 |
|
(c) |
|
|
Not Applicable |
|
§ 312(a) |
|
|
2.6 |
|
(b) |
|
|
10.3 |
|
(c) |
|
|
10.3 |
|
§ 313(a) |
|
|
7.6 |
|
(b)(1) |
|
|
7.6 |
|
(b)(2) |
|
|
7.6 |
|
(c)(1) |
|
|
7.6 |
|
(d) |
|
|
7.6 |
|
§ 314(a) |
|
|
4.2, 10.5 |
|
(b) |
|
|
Not Applicable |
|
(c)(1) |
|
|
10.4 |
|
(c)(2) |
|
|
10.4 |
|
(c)(3) |
|
|
Not Applicable |
|
(d) |
|
|
Not Applicable |
|
(e) |
|
|
10.5 |
|
(f) |
|
|
Not Applicable |
|
§ 315(a) |
|
|
7.1 |
|
(b) |
|
|
7.5 |
|
(c) |
|
|
7.1 |
|
(d) |
|
|
7.1 |
|
(e) |
|
|
6.14 |
|
§ 316(a) |
|
|
2.10 |
|
(a)(1)(A) |
|
|
6.12 |
|
(a)(1)(B) |
|
|
6.13 |
|
(b) |
|
|
6.8 |
|
§ 317(a)(1) |
|
|
6.3 |
|
(a)(2) |
|
|
6.4 |
|
(b) |
|
|
2.5 |
|
§ 318(a) |
|
|
10.1 |
Note: |
This reconciliation and tie shall not, for any purpose, be deemed to be part of the Indenture. |
-iv-
Indenture dated as of between IGATE Corporation, a company incorporated under the laws of
the Commonwealth of Pennsylvania (Company), and Wilmington Trust, National Association (Trustee).
Each party agrees as follows for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued
under this Indenture.
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Additional Amounts means any additional amounts which are required hereby or by any Security, under circumstances specified
herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
Affiliate of any specified person means any other person directly or indirectly controlling or controlled by or under
common control with such specified person. For the purposes of this definition, control (including, with correlative meanings, the terms controlled by and under common control with), as used with respect to any
person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the ownership of voting securities or by agreement or otherwise.
Agent means any Registrar, Paying Agent or Notice Agent.
Board of Directors means the board of directors of the Company or any duly authorized committee thereof.
Board Resolution means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have
been adopted by the Board of Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and delivered to the Trustee.
Business Day means, unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
hereto for a particular Series, any day except a Saturday, Sunday or a legal holiday in The City of New York, New York (or in connection with any payment, the place of payment) on which banking institutions are authorized or required by law,
regulation or executive order to close.
Capital Stock means any and all shares, interests, participations, rights or
other equivalents (however designated) of corporate stock.
Company means the party named as such above until a
successor replaces it and thereafter means the successor.
Company Order means a written order signed in the name of the Company by an
Officer.
Corporate Trust Office means the office of the Trustee at which at any particular time its corporate trust
business related to this Indenture shall be principally administered, and initially shall be at the address provided in Section 10.2 hereof.
Default means any event which is, or after notice or passage of time or both would be, an Event of Default.
Depositary means, with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or
more Global Securities, the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under the Exchange Act; and if at any time there is more than one such person, Depositary
as used with respect to the Securities of any Series shall mean the Depositary with respect to the Securities of such Series.
Discount Security means any Security that provides for an amount less than the stated principal amount thereof to be due
and payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2.
Dollars and
$ means the currency of The United States of America.
Exchange Act means the Securities Exchange
Act of 1934, as amended.
Foreign Currency means any currency or currency unit issued by a government other than the
government of The United States of America.
Foreign Government Obligations means, with respect to Securities of any
Series that are denominated in a Foreign Currency, direct obligations of, or obligations guaranteed by, the government that issued or caused to be issued such currency for the payment of which obligations its full faith and credit is pledged and
which are not callable or redeemable at the option of the issuer thereof.
GAAP means accounting principles generally
accepted in the United States of America set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect as of the date of determination.
Global Security or Global Securities means a Security or Securities, as the case may be, in the form
established pursuant to Section 2.2 evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of such Depositary or nominee.
Holder or Securityholder means a person in whose name a Security is registered.
-2-
Indenture means this Indenture as amended or supplemented from time to
time and shall include the form and terms of particular Series of Securities established as contemplated hereunder.
interest with respect to any Discount Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
Maturity, when used with respect to any Security, means the date on which the
principal of such Security becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
Officer means the Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Assistant
Treasurer, the Secretary or any Assistant Secretary, and any Vice President of the Company.
Officers
Certificate means a certificate signed by any Officer.
Opinion of Counsel means a written opinion of
legal counsel who is acceptable to the Trustee. The counsel may be an employee of or counsel to the Company.
person means any individual, corporation, partnership, joint venture, association, limited liability company,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
principal of a Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any
Additional Amounts in respect of, the Security.
Responsible Officer means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee, including any vice president, assistant vice president, assistant treasurer, trust officer or any other officer of the Trustee who customarily performs functions similar to
those performed by the persons who at the time shall be such officers, respectively, in each case, having direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other
officer to whom any corporate trust matter with respect to this Indenture is referred because of his or her knowledge of and familiarity with the particular subject.
SEC means the Securities and Exchange Commission.
Securities means the debentures, notes or other debt instruments of the Company of any Series authenticated and
delivered under this Indenture.
Series or Series of Securities means each series of
debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and 2.2 hereof.
Stated
Maturity when used with respect to any Security, means the date specified in such Security as the fixed date on which the principal of such Security or interest is due and payable.
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Subsidiary of any specified person means any corporation, association
or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by such person or one or more of the other Subsidiaries of that person or a combination thereof.
TIA means the Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this
Indenture; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, TIA means, to the extent required by any such amendment, the Trust Indenture Act as so amended.
Trustee means the person named as the Trustee in the first paragraph of this instrument 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.
U.S. Government Obligations means securities which are direct obligations of, or guaranteed by, The United States of
America for the payment of which its full faith and credit is pledged and which are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest on or principal of any such U.S. Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government Obligation evidenced by such
depositary receipt.
Section 1.2. Other Definitions.
|
|
|
TERM |
|
DEFINED IN SECTION |
|
|
Bankruptcy Law |
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6.1 |
Custodian |
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6.1 |
Event of Default |
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6.1 |
Judgment Currency |
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10.16 |
Legal Holiday |
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10.7 |
mandatory sinking fund payment |
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11.1 |
Market Exchange Rate |
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10.15 |
New York Banking Day |
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10.16 |
Notice Agent |
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2.4 |
optional sinking fund payment |
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11.1 |
Paying Agent |
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2.4 |
Registrar |
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2.4 |
Required Currency |
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10.16 |
successor person |
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5.1 |
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Section 1.3. Incorporation by Reference of Trust Indenture Act. Whenever this
Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used in this Indenture have the following meanings:
Commission means the SEC.
indenture securities means the Securities.
indenture security holder means a Securityholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Trustee.
obligor on the indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under
the TIA and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction. Unless the
context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) or is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular; and
(e) provisions apply to successive events and transactions.
ARTICLE II
THE SECURITIES
Section 2.1. Issuable in Series. The aggregate principal amount of Securities that may be authenticated and delivered under this
Indenture is unlimited. The Securities may be issued in one or more Series. All Securities of a Series shall be identical except as may be set
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forth or determined in the manner provided in a Board Resolution, a supplemental indenture or an Officers Certificate detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution. In the case of Securities of a Series to be issued from time to time, the Board Resolution, Officers Certificate or supplemental indenture detailing the adoption of the terms thereof pursuant to authority
granted under a Board Resolution may provide for the method by which specified terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may differ between Series in respect
of any matters, provided that all Series of Securities shall be equally and ratably entitled to the benefits of the Indenture.
Section 2.2. Establishment of Terms of Series of Securities. At or prior to the issuance of any Securities within a Series, the
following shall be established (as to the Series generally, in the case of Subsection 2.2.1 and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.23) by or pursuant to a Board
Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture hereto or Officers Certificate:
2.2.1. the title (which shall distinguish the Securities of that particular Series from the Securities of any other Series) and ranking
(including the terms of any subordination provisions) of the Series;
2.2.2. the price or prices (expressed as a percentage of the
principal amount thereof) at which the Securities of the Series will be issued;
2.2.3. 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 the Series
pursuant to Sections 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4. the date or dates on which the principal of the Securities of the Series is
payable;
2.2.5. the rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or
rates (including, but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall bear interest, if any, the date or dates from which such interest, if any, shall accrue, the
date or dates on which such interest, if any, shall commence and be payable and any regular record date for the interest payable on any interest payment date;
2.2.6. the place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered, and the method of such payment, if by
wire transfer, mail or other means;
2.2.7. if applicable, the period or periods within which, the price or prices at which and the terms
and conditions upon which the Securities of the Series may be redeemed, in whole or in part, at the option of the Company;
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2.2.8. the obligation, if any, of the Company to redeem or purchase the Securities of the Series
pursuant to any sinking fund or analogous provisions or at the option of a Holder thereof and the period or periods within which, the price or prices 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;
2.2.9. the dates, if any, on which and the price or prices at which the
Securities of the Series will be repurchased by the Company at the option of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10. if other than minimum denominations of $1,000 and any integral multiple in excess thereof, the denominations in which the Securities
of the Series shall be issuable;
2.2.11. the forms of the Securities of the Series and whether the Securities will be issuable as Global
Securities;
2.2.12. if other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that
shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13. the currency of
denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, and if such currency of denomination is a composite currency, the agency or organization, if any, responsible for overseeing such composite currency;
2.2.14. the designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the
Securities of the Series will be made;
2.2.15. if payments of principal of or interest, if any, on the Securities of the Series are to be
made in one or more currencies or currency units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments will be determined;
2.2.16. the manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index, stock exchange index or financial index;
2.2.17. the provisions, if any, relating to any security provided for the Securities of the Series;
2.2.18. any addition to, deletion of or change in the Events of Default which applies to any Securities of the Series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
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2.2.19. any addition to, deletion of or change in the covenants set forth in Articles IV or V
which applies to Securities of the Series;
2.2.20. any Depositaries, interest rate calculation agents, exchange rate calculation agents
or other agents with respect to Securities of such Series if other than those appointed herein;
2.2.21. the provisions, if any, relating
to conversion or exchange of any Securities of such Series, including if applicable, the conversion or exchange price, the conversion or exchange period, provisions as to whether conversion or exchange will be mandatory, at the option of the Holders
thereof or at the option of the Company, the events requiring an adjustment of the conversion price or exchange price and provisions affecting conversion or exchange if such Series of Securities are redeemed;
2.2.22. any other terms of the Series (which may supplement, modify or delete any provision of this Indenture insofar as it applies to such
Series), including any terms that may be required under applicable law or regulations or advisable in connection with the marketing of Securities of that Series; and
2.2.23. whether any of the Companys direct or indirect Subsidiaries will guarantee the Securities of that Series, including the terms of
subordination, if any, of such guarantees.
All Securities of any one Series need not be issued at the same time and may be issued from
time to time, consistent with the terms of this Indenture, if so provided by or pursuant to the Board Resolution, supplemental indenture hereto or Officers Certificate referred to above.
Section 2.3. Execution and Authentication. An Officer shall sign the Securities for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual signature of the Trustee or an authenticating
agent. The signature shall be conclusive evidence that the Security has been authenticated under this Indenture.
The Trustee shall at any
time, and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental indenture hereto or Officers Certificate, upon receipt by the Trustee of a Company Order. Each
Security shall be dated the date of its authentication.
The aggregate principal amount of Securities of any Series outstanding at any
time may not exceed any limit upon the maximum principal amount for such Series set forth in the Board Resolution, supplemental indenture hereto or Officers Certificate delivered pursuant to Section 2.2, except as provided in
Section 2.8.
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Prior to the issuance of Securities of any Series, the Trustee shall have received and (subject
to Section 7.2) shall be fully protected in relying on: (a) the Board Resolution, supplemental indenture hereto or Officers Certificate establishing the form of the Securities of that Series or of Securities within that Series and
the terms of the Securities of that Series or of Securities within that Series, (b) an Officers Certificate complying with Sections 10.4 and 10.5, and (c) an Opinion of Counsel complying with Sections 10.4 and 10.5 and stating that
the form and terms of the Securities have been established in conformity with this Indenture.
The Trustee shall have the right to decline
to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that such action may not be taken lawfully; or (b) if the Trustee in good faith shall determine that such action would
expose the Trustee to personal liability to Holders of any then outstanding Series of Securities.
The Trustee may appoint an
authenticating agent acceptable to the Company to authenticate Securities, which acceptance by the Company shall not be unreasonably withheld. An authenticating agent may authenticate Securities whenever the Trustee may do so. Each reference in this
Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent has the same rights as an Agent to deal with the Company or an Affiliate of the Company.
Section 2.4. Registrar and Paying Agent. The Company shall maintain, with respect to each Series of Securities, at the place or
places specified with respect to such Series pursuant to Section 2.2, an office or agency where Securities of such Series may be presented or surrendered for payment (Paying Agent), where Securities of such Series may be
surrendered for registration of transfer or exchange (Registrar) and where notices and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be delivered (Notice
Agent). The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will give prompt written notice to the Trustee of the name and address, and any change in the name or
address, of each Registrar, Paying Agent or Notice Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Notice Agent or shall fail to furnish the Trustee with the name and address thereof, such
presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands; provided,
however, no service of legal process on the Company may be made at any office of the Trustee.
The Company may also from time to
time designate one or more co-registrars, additional paying agents or additional notice agents 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 obligations to maintain a Registrar, Paying Agent and Notice Agent in each place so specified pursuant to Section 2.2 for Securities of any Series for such purposes. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the name or address of any such co-registrar, additional paying agent or additional notice agent. The term Registrar includes any co-registrar; the term Paying
Agent includes any additional paying agent; and the term Notice Agent includes any additional notice agent. The Company or any of its Affiliates may serve as Registrar or Paying Agent.
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The Company hereby appoints the Trustee the initial Registrar, Paying Agent and Notice Agent for
each Series unless another Registrar, Paying Agent or Notice Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5. Paying Agent to Hold Money in Trust. The Company shall require each Paying Agent other than the Trustee to agree in
writing that the Paying Agent will hold in trust, for the benefit of Securityholders of any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of Securities, and will
notify the Trustee in writing of any default by the Company in making any such payment. While any such default continues, the Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying
Agent to pay all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of the Company) shall have no further liability for the money. If the Company or a Subsidiary of the
Company acts as Paying Agent, it shall segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as Paying Agent. Upon any bankruptcy, reorganization or similar proceeding with
respect to the Company, the Trustee shall automatically become the Paying Agent for the Securities.
Section 2.6. Securityholder
Lists. The Trustee shall preserve in as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each Series of Securities and shall otherwise comply with TIA
§ 312(a). If the Trustee is not the Registrar, the Company shall furnish to the Trustee at least ten days before each interest payment date and at such other times as the Trustee may request in writing a list, in such form and as of such
date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of Securities.
Section 2.7.
Transfer and Exchange. Where Securities of a Series are presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of Securities of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such transactions are met. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities at the Registrars request. No service charge shall be
made for any registration of transfer or exchange (except as otherwise expressly permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith
(other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11, 3.6 or 9.6).
Every
Security presented or surrendered for registration of transfer or for exchange shall (if so required by the Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Registrar duly executed, by
the Holder thereof or his attorney duly authorized in writing.
Neither the Company nor the Registrar shall be required (a) to issue,
register the transfer of, or exchange Securities of any Series for the period beginning at the opening of
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business fifteen days immediately preceding the sending of a notice of redemption of Securities of that Series selected for redemption and ending at the close of business on the day of such
sending, or (b) to register the transfer of or exchange Securities of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected, called or being called for redemption in
part.
Section 2.8. Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security is surrendered to the Trustee,
the Company shall execute and the Trustee shall, upon receipt of a Company Order, 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 or indemnity bond as may be required by each of them to hold itself and any of its agents 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 receipt of a Company Order, the Trustee shall authenticate and make available for delivery, 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.
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 2.9. Outstanding Securities. The Securities outstanding at any time are all the Securities authenticated by the Trustee
except for those canceled by it, those delivered to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it
that the replaced Security is held by a bona fide purchaser.
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If the Paying Agent (other than the Company, a Subsidiary of the Company or an Affiliate of the
Company) holds on the Maturity of Securities of a Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series cease to be outstanding and interest on them ceases to accrue.
The Company may purchase or otherwise acquire the Securities, whether by open market purchases, negotiated transactions or otherwise. A
Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security (but subject to Section 2.10 below).
In determining whether the Holders of the requisite principal amount of outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the amount of the principal thereof that would be due and payable as of the date of such
determination upon a declaration of acceleration of the Maturity thereof pursuant to Section 6.2.
Section 2.10. Treasury
Securities. In determining whether the Holders of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice, consent or waiver, Securities of a Series owned by the Company or
any Affiliate of the Company shall be disregarded, except that for the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice, consent or waiver only Securities of a
Series that a Responsible Officer of the Trustee knows are so owned shall be so disregarded.
Section 2.11. Temporary
Securities. Until definitive Securities are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary Securities shall be substantially in the form of definitive
Securities but may have variations that the Company considers appropriate for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon receipt of a Company Order shall authenticate definitive Securities of the
same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities shall have the same rights under this Indenture as the definitive Securities.
Section 2.12. Cancellation. The Company at any time may deliver Securities to the Trustee for cancellation. The Registrar and the
Paying Agent shall forward to the Trustee any Securities surrendered to them for registration of transfer, exchange or payment. The Trustee shall cancel all Securities surrendered for transfer, exchange, payment, replacement or cancellation and
shall destroy such canceled Securities (subject to the record retention requirements of the Exchange Act and the Trustees customary procedures) and deliver a certificate of such cancellation to the Company upon written request of the Company.
The Company may not issue new Securities to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13. Defaulted Interest. If the Company defaults in a payment of interest on a Series of Securities, it shall pay the
defaulted interest, plus, to the extent permitted by law, any interest payable on the defaulted interest, to the persons who are Securityholders of
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the Series on a subsequent special record date. The Company shall fix the record date and payment date. At least 10 days before the special record date, the Company shall send to the Trustee and
to each Securityholder of the Series a notice that states the special record date, the payment date and the amount of interest to be paid. The Company may pay defaulted interest in any other lawful manner.
Section 2.14. Global Securities.
2.14.1. Terms of Securities. A Board Resolution, a supplemental indenture hereto or an Officers Certificate shall establish
whether the Securities of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security or Securities.
2.14.2. Transfer and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in
addition thereto, any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders other than the Depositary for such Security or its nominee only if (i) such Depositary
notifies the Company that it is unwilling or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered under the Exchange Act, and, in either case, the Company fails to
appoint a successor Depositary registered as a clearing agency under the Exchange Act within 90 days of such event or (ii) the Company executes and delivers to the Trustee an Officers Certificate to the effect that such Global Security
shall be so exchangeable (subject to the procedures of the Depositary) or (iii) an Event of Default with respect to the Securities represented by such Global Security shall have occurred and be continuing and the Depositary so requests. Any
Global Security that is exchangeable pursuant to the preceding sentence shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount equal to the principal amount of the
Global Security with like tenor and terms.
Except as provided in this Section 2.14.2, a Global Security may not be transferred
except as a whole by the Depositary with respect to such Global Security to a nominee of such Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such a successor Depositary.
2.14.3. Legend. Any Global Security issued hereunder shall bear
a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture hereinafter
referred to and is registered in the name of the Depositary or a nominee of the Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only in the limited circumstances
described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of the Depositary, 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 a successor Depositary.
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2.14.4. Acts of Holders. The Depositary, as a Holder, may appoint agents and otherwise
authorize participants to give or take any request, demand, authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5. Payments. Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by
Section 2.2, payment of the principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6.
Consents, Declaration and Directions. The Company, the Trustee and any Agent shall treat a person as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified in a
written statement of the Depositary or by the applicable procedures of such Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers or directions required to be given by the Holders pursuant to
this Indenture.
Section 2.15. 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 elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in
or omission of such numbers.
Section 2.16. Persons Deemed Owners. Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the person in whose name such Security is registered in the register kept by the Registrar as the owner of such Security for the purpose of receiving payment of
principal of and (subject to the record date provisions thereof) interest on and any Additional Amounts with respect to, such Security and for all other purposes whatsoever, whether or not any payment with respect to such Security shall be overdue,
and none of the Company, the Trustee or any agent of the Company or the Trustee shall be affected by notice to the contrary. No holder of any beneficial interest in any Global Security held on its behalf by a Depository shall have any rights under
this Indenture with respect to such Global Security, and such Depository may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the owner of such Global Security for all purposes whatsoever. None of the Company,
the Trustee, any Paying Agent or the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
ARTICLE III
REDEMPTION
Section 3.1.
Notice to Trustee. The Company may, with respect to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at
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such time and on such terms as provided for in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity thereof all or
part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee in writing of the redemption date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 30
days before the redemption date.
Section 3.2. Selection of Securities to be Redeemed. Unless otherwise indicated for a
particular Series by a Board Resolution, a supplemental indenture hereto or an Officers Certificate, if less than all the Securities of a Series are to be redeemed, the Securities of the Series to be redeemed will be selected as follows:
(a) if the Securities are in the form of Global Securities, in accordance with the procedures of the Depositary, (b) if the Securities are listed on any national securities exchange, in compliance with the requirements of the principal
national securities exchange, if any, on which the Securities are listed, or (c) if not otherwise provided for under clause (a) or (b) in the manner that the Trustee deems fair and appropriate, including by lot or other method, unless
otherwise required by law or applicable stock exchange requirements, subject, in the case of Global Securities, to the applicable rules and procedures of the Depositary. The Trustee shall make the selection from Securities of the Series outstanding
not previously called for redemption. The Trustee may select for redemption portions of the principal of Securities of the Series that have minimum denominations larger than $1,000. Securities of the Series and portions of them it selects shall be
in amounts of $1,000 or whole multiples of $1,000 or, with respect to Securities of any Series issuable in other minimum denominations pursuant to Section 2.2.10, the minimum principal denomination for each Series and the authorized integral
multiples in excess thereof. Provisions of this Indenture that apply to Securities of a Series called for redemption also apply to portions of Securities of that Series called for redemption.
Section 3.3. Notice of Redemption. Unless otherwise indicated for a particular Series by Board Resolution, a supplemental
indenture hereto or an Officers Certificate, at least 30 days but not more than 60 days before a redemption date, the Company shall send a notice of redemption by first-class mail or electronically in the case of Global Securities to each
Holder whose Securities are to be redeemed, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the Series of Securities or a satisfaction and discharge
of this Indenture pursuant to Articles VIII or IX hereof.
The notice shall identify the Securities of the Series to be redeemed and shall
state:
(a) the redemption date;
(b) the redemption price;
(c)
the name and address of the Paying Agent;
(d) if any Securities are being redeemed in part, the portion of the principal amount of such
Securities to be redeemed and that, after the redemption date and upon
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surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion of the original Security shall be issued in the name of the Holder thereof upon
cancellation of the original Security;
(e) that Securities of the Series called for redemption must be surrendered to the Paying Agent to
collect the redemption price;
(f) that interest on Securities of the Series called for redemption ceases to accrue on and after the
redemption date unless the Company defaults in the deposit of the redemption price;
(g) the CUSIP number, if any; and
(h) any other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Companys written request, the Trustee shall give the notice of redemption in the Companys name and at its expense,
provided, however, that the Company has delivered to the Trustee, at least 10 days (unless a shorter time shall be acceptable to the Trustee) prior to the date on which the redemption notice must be sent to Holders, an Officers Certificate
requesting that the Trustee give such notice and setting forth the information to be stated in such notice.
Section 3.4. Effect
of Notice of Redemption. Once notice of redemption is mailed as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption date and at the redemption price. Except as otherwise provided in
the supplemental indenture, Board Resolution or Officers Certificate for a Series, a notice of redemption may not be conditional. Upon surrender to the Paying Agent, such Securities shall be paid at the redemption price plus accrued interest
to the redemption date.
Section 3.5. Deposit of Redemption Price. On or before 11:00 a.m., New York City time, on the
redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest, if any, on all Securities to be redeemed on that date.
Section 3.6. Securities Redeemed in Part. Upon surrender of a Security that is redeemed in part, the Trustee shall, upon receipt
of a Company Order, authenticate for the Holder a new Security of the same Series and the same maturity equal in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV
COVENANTS
Section 4.1. Payment of Principal and Interest. The Company covenants and agrees for the benefit of the Holders of each Series of
Securities that it will duly and punctually pay the principal of and interest, if any, on the Securities of that Series in accordance with the terms of such Securities and this Indenture. On or before 11:00 a.m., New York City time, on the
applicable payment date, the Company shall deposit with the Paying Agent money sufficient to pay the principal of and interest, if any, on the Securities of each Series in accordance with the terms of such Securities and this Indenture.
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Section 4.2. SEC Reports. To the extent any Securities of a Series are outstanding,
the Company shall deliver to the Trustee within 15 days after it files them with the SEC copies of the annual reports and of the information, documents, and other reports (or copies of such portions of any of the foregoing as the SEC may by rules
and regulations prescribe) which the Company is required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the other provisions of TIA § 314(a). Reports, information and
documents filed with the SEC via the EDGAR system will be deemed to be delivered to the Trustee as of the time of such filing via EDGAR for purposes of this Section 4.2.
Delivery of reports, information and documents to the Trustee under this Section 4.2 are for informational purposes only and the
Trustees receipt of the foregoing shall not constitute constructive or actual notice of any information contained therein or determinable from information contained therein, including the Companys compliance with any of their covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates).
Section 4.3. Compliance
Certificate. To the extent any Securities of a Series are outstanding, the Company shall deliver to the Trustee, within 90 days after the end of each fiscal year of the Company, an Officers Certificate stating that a review of the
activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations
under this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his/her knowledge the Company has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not
in default in the performance or observance of any of the terms, provisions and conditions hereof (or, if a Default or Event of Default shall have occurred, describing all such Defaults or Events of Default of which the Officer may have knowledge).
The Company will, so long as any of the Securities are outstanding, deliver to the Trustee, promptly upon becoming aware of any Default
or Event of Default, an Officers Certificate specifying such Default or Event of Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this
Indenture or the Securities; and the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not, by resort to any such law, 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 has been enacted.
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ARTICLE V
SUCCESSORS
Section 5.1.
When Company May Merge, Etc. The Company shall not consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its properties and assets to, any person (a successor person) unless:
(a) the Company is the surviving corporation or the successor person (if other than the Company) is a corporation organized and validly
existing under the laws of any U.S. domestic jurisdiction and expressly assumes the Companys obligations on the Securities and under this Indenture; and
(b) immediately after giving effect to the transaction, no Default or Event of Default, shall have occurred and be continuing.
The Company shall deliver to the Trustee prior to the consummation of the proposed transaction an Officers Certificate to the foregoing
effect and an Opinion of Counsel stating that the proposed transaction and any supplemental indenture comply with this Indenture and that such supplemental indenture is the legal, valid and binding obligation of such successor person, enforceable
against such successor person in accordance with its terms.
Notwithstanding the above, any Subsidiary of the Company may consolidate
with, merge into or transfer all or part of its properties to the Company. Neither an Officers Certificate nor an Opinion of Counsel shall be required to be delivered in connection therewith.
Section 5.2. Successor Corporation Substituted. Upon any consolidation or merger, or any sale, lease, conveyance or other
disposition of all or substantially all of the assets of the Company in accordance with Section 5.1, the successor corporation formed by such consolidation or into or with which the Company is merged or to which such sale, lease, conveyance or
other disposition is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as if such successor person has been named as the Company herein; provided,
however, that the predecessor Company in the case of a sale, conveyance or other disposition (other than a lease) shall be released from all obligations and covenants under this Indenture and the Securities.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default. Event of Default, wherever used herein with respect to Securities of any
Series, means any one of the following events, unless in the establishing Board Resolution, supplemental indenture or Officers Certificate, it is provided that such Series shall not have the benefit of said Event of Default:
(a) default in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless the entire amount of such payment is deposited by the Company with the Trustee or with a Paying Agent prior to 11:00 a.m., New York City time, on the 30th day of such
period); or
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(b) default in the payment of principal of any Security of that Series at its Maturity; or
(c) default in the performance or breach of any covenant or warranty of the Company in this Indenture (other than defaults pursuant to
paragraph (a) or (b) above or pursuant to a covenant or warranty that has been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured for a period of 60 days 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 25% in 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
(d) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in an involuntary case,
(iii) consents to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its creditors, or
(v) generally is unable to pay its debts as the same become due; or
(e) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or substantially all of its property, or
(iii) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 60 days; or
(f) any other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental
indenture hereto or an Officers Certificate, in accordance with Section 2.2.18.
The term Bankruptcy
Law means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term Custodian means any receiver, trustee, assignee, liquidator or similar official under any Bankruptcy Law.
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The Company will provide the Trustee written notice of any Default or Event of Default within 30
days of becoming aware of the occurrence of such Default or Event of Default, which notice will describe in reasonable detail the status of such Default or Event of Default and what action the Company is taking or proposes to take in respect
thereof.
Section 6.2. Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities
of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to in Section 6.1(d) or Section 6.1(e)) then in every such case the Trustee or the Holders of not less than 25% in principal amount of
the outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities, such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and
unpaid interest, if any, on 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) and accrued and unpaid interest, if any, shall become immediately due and payable. If an Event of Default specified in Section 6.1(d) or Section 6.1(e) shall occur, the principal amount (or specified amount) of and accrued and
unpaid interest, if any, on all outstanding Securities shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to 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 Holders of a majority in principal amount of the outstanding Securities of that Series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if all Events of Default with respect to Securities of that Series, other than the non-payment of the principal and interest, if any, of Securities of that Series which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent
Default or impair any right consequent thereon.
Section 6.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security when such interest becomes due and
payable and such default continues for a period of 30 days, or
(b) default is made in the payment of principal of any Security at the
Maturity thereof, or
(c) default is made in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security,
then, 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 interest and, to the extent that payment of such interest shall be legally enforceable, interest on
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any overdue principal and 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
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 deemed 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 any 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 6.4. Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole
amount of principal 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 the 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
(b) 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 7.7.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder
thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding.
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Section 6.5. 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 6.6. Application of Money Collected. Any money or property collected by the Trustee pursuant to this Article 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 or property on account of principal or interest, upon presentation of the Securities 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 under
Section 7.7; and
Second: To the payment of the amounts then due and unpaid for principal of and interest on the Securities 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 interest, respectively; and
Third: To the Company.
Section 6.7. 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
(a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
Series;
(b) the Holders of not less than 25% 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;
(c) such Holder
or Holders have offered to the Trustee indemnity or security satisfactory to the Trustee against the costs, expenses and liabilities which might be incurred by the Trustee in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(e) 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;
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it being understood, intended and expressly covenanted by the Holder of every Security with every other Holder
and the Trustee 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 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 such Holders of the applicable Series.
Section 6.8. Unconditional Right of Holders to Receive Principal 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 interest, if any, on such Security on the Maturity of such Security, including the Stated Maturity expressed
in such Security (or, in the case of redemption, on the redemption date) 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 6.9. 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 6.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.8, 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, to the extent permitted by law, prevent the concurrent assertion or employment of any other appropriate right or remedy.
Section 6.11. 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.
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Section 6.12. Control by Holders. The Holders of 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
(a) such direction shall not be in conflict with any rule of law or with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction,
(c) the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding
so directed would involve the Trustee in personal liability, and
(d) prior to taking any action as directed under this Section 6.12,
the Trustee shall be entitled to indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
Section 6.13. Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the outstanding Securities
of any Series may on behalf of the Holders of all the Securities of such Series waive any past Default hereunder with respect to such Series and its consequences, except a Default in the payment of the principal of or interest on any Security of
such Series (provided, however, that the Holders of a majority in principal amount of the outstanding Securities of any Series may rescind an acceleration and its consequences, including any related payment default that resulted from such
acceleration). 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 6.14. Undertaking for Costs. All parties to this Indenture agree, and
each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for
any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted 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 to any suit instituted by any
Holder for the enforcement of the payment of the principal of or interest on any Security on or after the Maturity of such Security, including the Stated Maturity expressed in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
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(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are specifically set forth in this Indenture and no others.
(ii) 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 Officers Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements of this Indenture; however, in the case of any such Officers Certificates or Opinions of
Counsel which by any provisions hereof are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers Certificates and Opinions of Counsel to determine whether or not they conform to the form requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its
own willful misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action taken,
suffered or omitted to be taken by it with respect to Securities of any Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities of such Series relating to the time, method
and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series in accordance with Section 6.12.
(d) Every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of
this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or power unless it receives indemnity satisfactory to
it against the costs, expenses, losses and liabilities which might be incurred by it in performing such duty or exercising such right or power.
(f) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No provision of this
Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance of any of its duties, or in the exercise of any of its rights or powers, if adequate indemnity against such risk is not assured
to the Trustee to its satisfaction.
(h) The Paying Agent, the Registrar and any authenticating agent shall be entitled to the protections
and, immunities as are set forth in paragraphs (e), (f) and (g) of this Section and in Section 7.2, each with respect to the Trustee.
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Section 7.2. Rights of Trustee.
(a) The Trustee may rely on and shall be protected in acting or refraining from acting upon any document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an Officers Certificate or an Opinion of Counsel or both. The
Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officers Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible for the misconduct or negligence of any agent appointed with due care. No
Depositary shall be deemed an agent of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its
rights or powers, provided that the Trustees conduct does not constitute willful misconduct or negligence.
(e) 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 without willful misconduct or negligence, and
in reliance thereon.
(f) 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 of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(g) 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.
(h) The Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities generally or the Securities of a particular Series and this Indenture.
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(i) In no event shall the Trustee be liable to any person for special, punitive, indirect,
consequential or incidental loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or damage.
(j) The permissive right of the Trustee to take the actions permitted by this Indenture shall not be construed as an obligation or duty to do
so.
(k) The Trustee shall not be required to provide any bond or surety with respect to the execution of these trusts and powers.
(l) The Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of Officers authorized
at such time to take specified actions pursuant to this Indenture.
(m) The Trustee shall not be liable in respect of any payment (as to
the correctness of amount, entitlement to receive or any other matters relating to payment) or notice effected by the Company or any Paying Agent or any records maintained by any co-Registrar with respect to the Notes.
(n) If any party fails to deliver a notice relating to an event the fact of which, pursuant to this Indenture, requires notice to be sent to
the Trustee, the Trustee may conclusively rely on its failure to receive such notice as reason to act as if no such event occurred.
Section 7.3. Individual Rights of Trustee. The Trustee in its individual or any other capacity may become the owner or pledgee of
Securities and may otherwise deal with the Company or an Affiliate of the Company with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to Sections 7.10 and 7.11.
Section 7.4. Trustees Disclaimer. The Trustee makes no representation as to the validity or adequacy of this Indenture or
the Securities, it shall not be accountable for the Companys use of the proceeds from the Securities, and it shall not be responsible for any statement in the Indenture or the Securities other than its authentication or such Securities.
Section 7.5. Notice of Defaults. If a Default or Event of Default occurs and is continuing with respect to the Securities of any
Series and if it is actually known to a Responsible Officer of the Trustee, the Trustee shall mail send to each Securityholder of the Securities of that Series notice of a Default or Event of Default within 90 days after it occurs or, if later,
after a Responsible Officer of the Trustee has actual knowledge of such Default or Event of Default. Except in the case of a Default or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold
the notice if and so long as its corporate trust committee or a committee of its Responsible Officers of the Trustee in good faith determines that withholding the notice is in the interests of Securityholders of that Series.
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Section 7.6. Reports by Trustee to Holders. Within 60 days after each anniversary of
the date of this Indenture, the Trustee shall transmit by mail to all Securityholders, as their names and addresses appear on the register kept by the Registrar, a brief report dated as of such anniversary date, in accordance with, and to the extent
required under, TIA § 313.
A copy of each report at the time of its mailing to Securityholders of any Series shall be filed
with the SEC and each national securities exchange on which the Securities of that Series are listed. The Company shall promptly notify the Trustee in writing when Securities of any Series are listed on any national securities exchange.
Section 7.7. Compensation and Indemnity. The Company shall pay to the Trustee from time to time compensation for its services as
the Company and the Trustee shall from time to time agree upon in writing. The Trustees compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee upon request for all
reasonable out of pocket expenses incurred by it. Such expenses shall include the reasonable compensation and expenses of the Trustees agents and counsel.
The Company shall indemnify each of the Trustee and any predecessor Trustee (including the cost of defending itself) against any cost, expense
or liability, including taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by it except as set forth in the next paragraph in the performance of its duties under this Indenture as Trustee or Agent.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the
Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company need not pay for any settlement made without its consent, which consent will not be
unreasonably withheld. This indemnification shall apply to officers, directors, employees, shareholders and agents of the Trustee.
The
Company need not reimburse any expense or indemnify against any loss or liability incurred by the Trustee or by any officer, director, employee, shareholder or agent of the Trustee through willful misconduct or negligence.
To secure the Companys payment obligations in this Section, the Trustee shall have a lien prior to the Securities of any Series on all
money or property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of Default specified in Section 6.1(d) or (e) occurs, the
expenses and the compensation for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The
provisions of this Section shall survive the termination of this Indenture and resignation or removal of the Trustee.
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Section 7.8. Replacement of Trustee. A resignation or removal of the Trustee and
appointment of a successor Trustee shall become effective only upon the successor Trustees acceptance of appointment as provided in this Section.
The Trustee may resign with respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of
the proposed resignation. The Holders of a majority in principal amount of the Securities of any Series may remove the Trustee with respect to that Series by so notifying the Trustee and the Company in writing. The Company may remove the Trustee
with respect to Securities of one or more Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the Holders of a majority in principal amount of the then outstanding Securities may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with respect to the Securities of any one or more Series does not take office within 60 days after the retiring
Trustee resigns or is removed, the retiring Trustee, the Company or the Holders of at least a majority in principal amount of the Securities of the applicable Series may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment to the retiring Trustee and to the Company.
Immediately after that, the retiring Trustee shall transfer all property held by it as Trustee to the successor Trustee subject to the lien provided for in Section 7.7, the resignation or removal of the retiring Trustee shall become effective,
and the successor Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting as Trustee under this Indenture. A successor Trustee shall send a notice of its succession to each
Securityholder of each such Series. Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Companys obligations under Section 7.7 hereof shall continue for the benefit of the retiring Trustee with respect to
expenses and liabilities incurred by it for actions taken or omitted to be taken in accordance with its rights, powers and duties under this Indenture prior to such replacement.
Section 7.9. Successor Trustee by Merger, Etc. If the Trustee consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the successor corporation without any further act shall be the successor Trustee, subject to Section 7.10.
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Section 7.10. Eligibility; Disqualification. This Indenture shall always have a
Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined capital and surplus of at least $25,000,000 as set forth in its most recent published annual report of condition. The
Trustee shall comply with TIA § 310(b).
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee is subject to TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
ARTICLE VIII
SATISFACTION AND
DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture. This Indenture shall upon Company Order cease to
be of further effect (except as hereinafter provided in this Section 8.1), and the Trustee, at the expense of the Company, shall execute instruments acknowledging satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities
theretofore authenticated and delivered (other than Securities that have been destroyed, lost or stolen and that have been replaced or paid) have been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within one year, or
(3) have been called for redemption or 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, or
(4) are deemed paid and discharged
pursuant to Section 8.3, as applicable;
and the Company, in the case of (1), (2) or (3) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust an amount of money or U.S. Government Obligations sufficient for the purpose of paying and discharging the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, for principal and interest to the date of such deposit (in the case of Securities which have become due and payable on or prior to the date of such deposit) or to the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable hereunder by the Company, including all amounts owed to the Trustee; and
(c) 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 have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company
to the Trustee under Section 7.7, and, if money shall have been deposited with the Trustee pursuant to clause (a) of this Section, the provisions of Sections 2.4, 2.7, 2.8, 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money or U.S. Government Obligations deposited with the Trustee pursuant to
Section 8.1, all money and U.S. Government Obligations or Foreign Government Obligations deposited with the Trustee pursuant to Sections 8.3 or 8.4 and all money received by the Trustee in respect of U.S. Government Obligations or Foreign
Government Obligations deposited with the Trustee pursuant to Sections 8.3 or 8.4, 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 interest for whose payment such money has been deposited with or received by the Trustee or to
make mandatory sinking fund payments or analogous payments as contemplated by Sections 8.3 or 8.4; provided that if necessary Foreign Government obligations may be deposited with a subagent of the Trustee and such deposit will satisfy the
requirements of this section.
(b) The Company shall pay and shall indemnify the Trustee against any tax, fee or other charge imposed on
or assessed against U.S. Government Obligations or Foreign Government Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and principal received in respect of such obligations other than any payable by or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time upon Company Order any U.S. Government Obligations or Foreign Government
Obligations or money held by it as provided in Sections 8.3 or 8.4 which, in the opinion of a nationally recognized firm of independent certified public accountants or investment bank expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been required to be deposited for the purpose for which such U.S. Government Obligations or Foreign Government Obligations or money were deposited or received. This provision
shall not authorize the sale by the Trustee of any U.S. Government Obligations or Foreign Government Obligations held under this Indenture.
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Section 8.3. Legal Defeasance of Securities of any Series. Unless this
Section 8.3 is otherwise specified, pursuant to Section 2.2, to be inapplicable to Securities of any Series, the Company shall be deemed to have paid and discharged the entire indebtedness on all the outstanding Securities of any Series on
the 91st day after the date of the deposit referred to in subparagraph (d) hereof, and the provisions of this Indenture, as it relates to such outstanding Securities of such Series, shall no longer be in effect (and the Trustee, at the expense
of the Company, shall, upon receipt of a Company Order, execute instruments acknowledging the same), except as to:
(a) the rights of
Holders of Securities of such Series to receive, from the trust funds described in subparagraph (d) hereof, (i) payment of the principal of and each installment of principal of and interest on the outstanding Securities of such Series on
the Maturity of such principal or installment of principal or interest and (ii) the benefit of any mandatory sinking fund payments applicable to the Securities of such Series on the day on which such payments are due and payable in accordance
with the terms of this Indenture and the Securities of such Series;
(b) the provisions of Sections 2.4, 2.7, 2.8, 8.2, 8.3 and 8.5; and
(c) the rights, powers, trust and immunities of the Trustee hereunder and the Companys obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) 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 (i) in the case of Securities of such Series denominated in
Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the
payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of
money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent public accountants or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of
principal of and interest, if any, on and any mandatory sinking fund payments in respect of all the Securities of such Series on the dates such installments of interest or principal and such sinking fund payments are due;
(e) such deposit will not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such deposit or during the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel to the effect that (i) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the
effect that, and based thereon such Opinion of Counsel shall confirm that, the Holders of the Securities of such Series will not recognize income, gain or loss for Federal income tax purposes as a result of such deposit, defeasance and 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 such deposit, defeasance and discharge had not occurred;
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(h) the Company shall have delivered to the Trustee an Officers Certificate stating that
the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(i) 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 the defeasance contemplated by this Section have been complied with.
Section 8.4. Covenant
Defeasance. Unless this Section 8.4 is otherwise specified pursuant to Section 2.2 to be inapplicable to Securities of any Series, the Company may omit to comply with respect to the Securities of any Series with any term, provision or
condition set forth under Sections 4.2, 4.3, 4.4 and 5.1 as well as any additional covenants specified in a supplemental indenture for such Series of Securities or a Board Resolution or an Officers Certificate delivered pursuant to
Section 2.2 (and the failure to comply with any such covenants shall not constitute a Default or Event of Default with respect to such Series under Section 6.1) and the occurrence of any event specified in a supplemental indenture for such
Series of Securities or a Board Resolution or an Officers Certificate delivered pursuant to Section 2.2.18 and designated as an Event of Default shall not constitute a Default or Event of Default hereunder, with respect to the Securities
of such Series, provided that the following conditions shall have been satisfied:
(a) With reference to this Section 8.4, the
Company has deposited or caused to be irrevocably deposited (except as provided in Section 8.2(c)) 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 (i) in the case of Securities of such Series denominated in Dollars, cash in Dollars and/or U.S. Government Obligations, or (ii) in the case of Securities of such Series denominated
in a Foreign Currency (other than a composite currency), money and/or Foreign Government Obligations, which through the payment of interest and principal in respect thereof in accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than one day before the due date of any payment of money, an amount in cash, sufficient, in the opinion of a nationally recognized firm of independent certified public accountants
or investment bank expressed in a written certification thereof delivered to the Trustee, to pay and discharge each installment of principal of and interest, if any, on and any mandatory sinking fund payments in respect of the Securities of such
Series on the dates such installments of interest or principal and such sinking fund payments are due;
(b) Such deposit will not result
in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Company is a party or by which it is bound;
(c) No Default or Event of Default with respect to the Securities of such Series shall have occurred and be continuing on the date of such
deposit;
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(d) The Company shall have delivered to the Trustee an Opinion of Counsel to the effect that
Holders of the Securities of such Series will not recognize income, gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to 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;
(e) The Company shall have
delivered to the Trustee an Officers Certificate stating the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the covenant defeasance contemplated by this Section have been complied with.
Section 8.5.
Repayment to Company. Subject to applicable abandoned property law and the Trustee and the Paying Agents customary procedures, the Trustee and the Paying Agent shall pay to the Company upon request any money held by them for the payment
of principal and interest that remains unclaimed for two years. After that, Securityholders entitled to the money must look to the Company for payment as general creditors unless an applicable abandoned property law designates another person.
Section 8.6. Reinstatement. If the Trustee or the Paying Agent is unable to apply any money deposited with respect to Securities
of any Series in accordance with Section 8.1 by reason of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the obligations of the
Company under this Indenture with respect to the Securities of such Series and under the Securities of such Series shall be revived and reinstated as though no deposit had occurred pursuant to Section 8.1 until such time as the Trustee or the
Paying Agent is permitted to apply all such money in accordance with Section 8.1; provided, however, that if the Company has made any payment of principal of, or interest on, or any Additional Amounts with respect to, any
Securities because of the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities to receive such payment from the money or U.S. Government Obligations held by the Trustee or Paying Agent
after payment in full to the Holders.
ARTICLE IX
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders. The Company and the Trustee may amend or supplement this Indenture or the Securities of
one or more Series without the consent of any Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to provide for uncertificated Securities in addition to or in place of certificated Securities;
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(d) to add guarantees with respect to Securities of any Series or secure Securities of any
Series;
(e) to surrender any of the Companys rights or powers under this Indenture;
(f) to add covenants or Events of Default for the benefit of the holders of Securities of any Series;
(g) to comply with the applicable procedures of the applicable depositary;
(h) to make any change that does not adversely affect the rights of any Securityholder;
(i) to provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(j) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee; or
(k) to comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders. The Company and the Trustee may enter into a supplemental indenture with the written consent
of the Holders of at least a majority in principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents obtained in connection with a tender offer or exchange offer for the Securities of
such Series), for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Securityholders of each such
Series. Except as provided in Section 6.13, the Holders of at least a majority in principal amount of the outstanding Securities of any Series by notice to the Trustee (including consents obtained in connection with a tender offer or exchange
offer for the Securities of such Series) may waive compliance by the Company with any provision of this Indenture or the Securities with respect to such Series.
It shall not be necessary for the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any
proposed supplemental indenture or waiver, but it shall be sufficient if such consent approves the substance thereof. Upon the request of the Company and upon the filing with the Trustee of evidence satisfactory to the Trustee of the consent of the
Holders of Securities as aforesaid, and upon receipt by the Trustee of the documents described in Section 10.4 hereof, the Trustee will join with the Company in the execution of such amended or supplemental indenture unless such amended or
supplemental indenture directly affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended or supplemental
Indenture. After a supplemental indenture or waiver under this
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Section becomes effective, the Company shall mail to the Holders of Securities affected thereby, a notice briefly describing the supplemental indenture or waiver. Any failure by the Company to
mail or publish such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3. Limitations. Without the consent of each Securityholder affected, an amendment, supplement or waiver may not:
(a) reduce the principal amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of
any sinking fund or analogous obligation;
(d) reduce the principal amount of Discount Securities payable upon acceleration of the
maturity thereof;
(e) waive a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except
a rescission of acceleration of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and a waiver of the payment default that resulted from such acceleration);
(f) make the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make any change in Sections 6.8, 6.13 or 9.3 (this sentence); or
(h) waive a redemption payment with respect to any Security, provided that such redemption is made at the Companys option.
Section 9.4. Compliance with Trust Indenture Act. Every amendment or supplement to this Indenture or the Securities of one or more
Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then in effect.
Section 9.5.
Revocation and Effect of Consents. Until an amendment is set forth in a supplemental indenture or a waiver becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting Holders Security, even if notation of the consent is not made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his
Security or portion of a Security if the Trustee receives the notice of revocation before the date of the supplemental indenture or the date the waiver becomes effective.
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Any amendment or waiver once effective shall bind every Securityholder of each Series affected by
such amendment or waiver unless it is of the type described in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security who has consented to it and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as the consenting Holders Security.
The Company may, but
shall not be obligated to, fix a record date for the purpose of determining the Holders entitled to give their consent or take any other action described above or required or permitted to be taken pursuant to this Indenture. If a record date is
fixed, then notwithstanding the immediately preceding paragraph, those Persons who were Holders at such record date (or their duly designated proxies), and only those persons, shall be entitled to give such consent or to revoke any consent
previously given or take any such action, whether or not such Persons continue to be Holders after such record date. No such consent shall be valid or effective for more than 120 days after such record date.
Section 9.6. Notation on or Exchange of Securities. The Company or the Trustee may place an appropriate notation about an
amendment, supplement or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities of that Series may issue and the Trustee shall, upon receipt of a Company Order, authenticate upon request new Securities
of that Series that reflect the amendment or waiver.
Section 9.7. Trustee Protected. 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 entitled to receive, and (subject to Section 7.1) 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 and with respect to such Opinion of Counsel that such
supplemental indenture is the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms. The Trustee shall sign all supplemental indentures upon delivery of such an Officers Certificate or
Opinion of Counsel or both, except that the Trustee need not sign any supplemental indenture that adversely affects its rights.
ARTICLE X
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls. If any provision of this Indenture limits, qualifies, or conflicts with another
provision which is required or deemed to be included in this Indenture by the TIA, such required or deemed provision shall control.
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Section 10.2. Notices. Any notice or communication by the Company or the Trustee to
the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in person or mailed by first-class mail or overnight courier:
if to the Company:
IGATE
Corporation
100 Somerset Corporate Blvd.
Bridgewater, New Jersey 08807
Attention: General Counsel
Facsimile: (510) 896-3010
if to the Trustee:
Wilmington Trust, National Association
Corporate Capital Markets
50 South Sixth Street
Suite 1290
Minneapolis, MN 55402
Attention: IGATE Corporation Administrator
Facsimile: 612-217-5651
The Company or the Trustee by notice to the other may designate additional or different addresses for subsequent notices or communications.
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.
All notices and communications (other than those sent to Holders) will be deemed to have been duly given: at
the time delivered by hand, if personally delivered; five Business Days after being deposited in the mail, postage prepaid, and, if mailed; the next Business Day after timely delivery to the courier, if sent by overnight air courier for next
Business Day delivery.
Any notice or communication to a Securityholder shall be mailed by first-class mail to his address shown on the
register kept by the Registrar. Failure to mail a notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other Securityholders of that or any other Series.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by
mail, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
If a notice or communication is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not
the Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it shall mail a copy to the Trustee
and each Agent at the same time.
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Notwithstanding any other provision of this Indenture or any Security, where this Indenture or
any Security provides for notice of any event (including any notice of redemption) to a Holder of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depositary for such Security (or its
designee) pursuant to the customary procedures of such Depositary.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of any Series may communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect to their rights under this Indenture or the Securities of that Series or all Series. The
Company, the Trustee, the Registrar and anyone else shall have the protection of TIA § 312(c).
Section 10.4.
Certificate and Opinion as to Conditions Precedent. Upon any request or application by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e)
and shall include:
(a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such examination or investigation as
is necessary to enable him to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(d)
a statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 10.6.
Rules by Trustee and Agents. The Trustee may make reasonable rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable requirements for its functions.
Section 10.7. Legal Holidays. Unless otherwise provided by Board Resolution, Officers Certificate or supplemental indenture
hereto for a particular Series, a Legal Holiday
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is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on the next succeeding day that is not a Legal Holiday, and no
interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others. A director, officer, employee or
stockholder (past or present), as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture or for any claim based on, in respect of or by reason of such obligations or their creation.
Each Securityholder by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for the execution of this Indenture and the issue of the Securities.
Section 10.9. Counterparts. This Indenture may be executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF
transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be
deemed to be their original signatures for all purposes.
Section 10.10. Governing Law. THIS INDENTURE AND THE SECURITIES,
INCLUDING ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO THE INDENTURE OR THE SECURITIES, SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS THEREOF OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW).
Section 10.11. No Adverse Interpretation of Other Agreements. This Indenture may not be used to
interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt agreement may not be used to interpret this Indenture.
Section 10.12. Successors. All agreements of the Company in this Indenture and the Securities shall bind its successor. All
agreements of the Trustee in this Indenture shall bind its successor.
Section 10.13. Severability. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc. The Table of Contents, Cross Reference Table, and headings of the Articles and
Sections of this Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
Section 10.15. Securities in a Foreign Currency. Unless otherwise specified in a Board Resolution, a supplemental indenture hereto
or an Officers Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, whenever for
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purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all Series or all Series affected by a particular action
at the time outstanding and, at such time, there are outstanding Securities of any Series which are denominated in more than one currency, then the principal amount of Securities of such Series which shall be deemed to be outstanding for the purpose
of taking such action shall be determined by converting any such other currency into a currency that is designated upon issuance of any particular Series of Securities. Unless otherwise specified in a Board Resolution, a supplemental indenture
hereto or an Officers Certificate delivered pursuant to Section 2.2 of this Indenture with respect to a particular Series of Securities, such conversion shall be at the spot rate for the purchase of the designated currency as published in
The Financial Times in the Currency Rates section (or, if The Financial Times is no longer published, or if such information is no longer available in The Financial Times, such source as may be selected in good faith by the Company) on
any date of determination. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a Series denominated in currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
All decisions and determinations provided for in the preceding paragraph shall, in
the absence of manifest error, to the extent permitted by law, be conclusive for all purposes and irrevocably binding upon the Trustee and all Holders.
Section 10.16. Judgment Currency. The Company agrees, to the fullest extent that it may effectively do so under applicable law,
that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest or other amount on the Securities of any Series (the Required Currency) into a
currency in which a judgment will be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then the rate of exchange used shall be the rate at which in accordance with normal banking
procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its obligations under this
Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments, (ii) shall be enforceable as
an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so expressed to be payable, and
(iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a legal holiday in The City of
New York on which banking institutions are authorized or required by law, regulation or executive order to close.
Section 10.17.
Calculations. The Company will be responsible for making all calculations called for under this Indenture or the Securities. The Company will make all such
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calculations in good faith and, absent manifest error, its calculations will be final and binding on Holders. The Company will provide a schedule of its calculations to the Trustee and the
Trustee is entitled to rely conclusively upon the accuracy of such calculations without independent verification. The Trustee will deliver a copy of such schedule to any Holder upon the written request of such Holder.
Section 10.18. U.S.A. Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot
Act, the Trustee, like all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each person or legal entity that establishes a
relationship or opens an account with the Trustee. The parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 10.19. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance
of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or
natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services, it being understood that the Trustee shall use reasonable best efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
ARTICLE XI
SINKING FUNDS
Section 11.1.
Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of the Securities of a Series if so provided by the terms of such Securities pursuant to Section 2.2 and except as
otherwise permitted or required by any form of Security of such Series issued pursuant to this Indenture.
The minimum amount of
any sinking fund payment provided for by the terms of the Securities of any Series is herein referred to as a mandatory sinking fund payment and any other amount provided for by the terms of Securities of such 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 11.2. Each sinking fund
payment shall be applied to the redemption of Securities of any Series as provided for by the terms of the Securities of such Series.
Section 11.2. Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any
sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any of such
Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the
election of the Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of
such Securities, provided that such Securities have
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not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers Certificate with respect thereto, not later than 15 days prior to the date on
which the Trustee begins the process of selecting Securities for redemption, and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities in lieu of cash payments pursuant to this Section 11.2, the principal amount of Securities of such Series to be redeemed in order to
exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee
or a Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from time to time upon receipt of a Company Order pay over and deliver to the Company any cash
payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal amount equal to the cash payment required to be released to the
Company.
Section 11.3. Redemption of Securities for Sinking Fund. Not less than 45 days (unless otherwise indicated in the
Board Resolution, supplemental indenture hereto or Officers Certificate in respect of a particular Series of Securities) prior to each 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 of Securities of that Series pursuant to Section 11.2, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and the
Company shall thereupon be obligated to pay the amount therein specified. Not less than 30 days (unless otherwise indicated in the Board Resolution, Officers Certificate or supplemental indenture in respect of a particular Series of
Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in
the name of and at the expense of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
-43-
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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IGATE Corporation |
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By: |
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Name: |
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Title: |
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WILMINGTON TRUST, NATIONAL ASSOCIATION, |
as Trustee |
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By: |
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Name: |
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Title: |
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Suite 5000
500 Grant Street
Pittsburgh, PA 15219-2507
412.454.5000
Fax 412.281.0717
Exhibit 5.1
December 4, 2014
IGATE
Corporation
100 Somerset Corporate Blvd.
Bridgewater, NJ
08807
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Re: |
Registration Statement on Form S-3 |
Ladies and Gentlemen:
This opinion is furnished to you in connection with the Registration Statement on Form S-3 (the Registration
Statement) being filed by IGATE Corporation, a Pennsylvania corporation (the Company), with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933,
as amended (the Securities Act), relating to the registration of: (1) shares of the Companys common stock, par value $0.01 per share (the Common Stock); (2) one or more classes or
one or more series of stock within any class of the Companys preferred stock, without par value (the Preferred Stock); (3) debt securities of the Company (the Debt Securities);
(4) warrants to purchase shares of Common Stock, shares of Preferred Stock, Debt Securities or other securities or any combination of the foregoing (the Warrants); (5) units consisting of one or more shares of
Common Stock, shares of Preferred Stock, Debt Securities, Warrants, Rights (as defined below) or any combination of the foregoing (Units); and (6) subscription rights to one or more shares of Common Stock, shares of
Preferred Stock, Debt Securities or any combination of the foregoing (Rights) (collectively, the Securities). The Securities may be offered and sold from time to time as set forth in the prospectus
which forms a part of the Registration Statement (the Prospectus), and as may be set forth in one or more supplements to the prospectus, after the Registration Statement becomes effective. The Prospectus, as may be
supplemented by prospectus supplements to the Prospectus, will also provide for the resale of up to 23,384,095 shares of Common Stock (the Selling Shareholder Shares) that were issued prior to the filing of the Registration
Statement and that may be sold from time to time by certain shareholders of the Company identified therein as selling shareholders.
You
have requested that we render the opinions set forth in this letter and we are furnishing this opinion pursuant to the requirements of Item 601(b)(5) of Regulation S-K promulgated by the Commission under the Securities Act.
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Philadelphia
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Boston |
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Washington, D.C. |
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Los Angeles |
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New York |
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Pittsburgh |
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Detroit |
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Berwyn |
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Harrisburg |
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Orange County |
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Princeton |
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Silicon Valley |
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Wilmington |
www.pepperlaw.com
IGATE Corporation
Page
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We have examined (1) the Registration Statement, (2) the exhibits to the
Registration Statement, (3) the Companys Third Amended and Restated Articles of Incorporation (the Certificate) and Amended and Restated Bylaws (the Bylaws), as in effect on the date
hereof, (4) certain resolutions of the Board of Directors of the Company and (5) such other documents, corporate records, and instruments, and have examined such laws and regulations as we have deemed necessary for purposes of rendering
the opinions set forth herein. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as certified or photostatic copies, the authenticity
of the originals of such latter documents and that the Securities and Selling Shareholder Shares will be issued against payment of valid consideration under applicable law. As to any facts material to the opinions expressed herein, which were not
independently established or verified, we have relied upon statements and representations of officers and other representatives of the Company and others.
We express no opinion herein as to the law of any state or jurisdiction other than the laws of the Commonwealth of Pennsylvania, including
statutory provisions and all applicable provisions of the Pennsylvania Constitution and reported judicial decisions interpreting such laws of the Commonwealth of Pennsylvania and the laws of the State of New York (solely with respect to our opinion
in paragraphs 3, 4, 5 and 6 below), as applicable, in each case without regard to conflict or choice of law principles and as applied by courts located in the particular jurisdiction, and the federal laws of the United States of America.
For the purposes of the opinions set forth below, we have assumed that the issuance of, and certain terms of, the Securities and Selling
Shareholder Shares that may be issued from time to time, as well as any agreements entered into in connection therewith, will have been duly authorized and established by proper action of the Company, consistent with the procedures and terms
described in the Registration Statement and in accordance with the Certificate, the Bylaws and applicable Pennsylvania law, in a manner that does not violate any law, government or court-imposed order, restriction, agreement or instrument then
binding on the Company (the Authorizing Proceedings).
In expressing the opinions set forth below, we have
further assumed that: (1) prior to any issuance of Preferred Stock, Warrants, Units or Rights that contain Preferred Stock, such Preferred Stock shall be classified in accordance with the Certificate and applicable Pennsylvania law and an
appropriate designation shall be duly filed for recordation with the Secretary of the Commonwealth of Pennsylvania; (2) the indenture (Indenture) by and between the Company and a trustee to be named
(Trustee) pursuant to which Debt Securities or the portion of Units or Rights that contain Debt Securities are to be issued and sold will have been duly authorized, executed and delivered by the parties thereto; and
(3) the Trustee will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and will be in compliance, generally and with respect to acting as a trustee, with the Indenture and all applicable
laws and regulations.
IGATE Corporation
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In expressing the opinions set forth below, we have further assumed that (i) the
Warrants or the portion of Units that contain Warrants will be issued under one or more warrant agreements (each, a Warrant Agreement) and (ii) the Rights or the portion of Units that contain Rights will be issued
under one or more subscription rights agreements (each, a Subscription Rights Agreement). To the extent that the obligations of the Company under each Warrant Agreement or Subscription Rights Agreement may be dependent upon
such matters, we have assumed for purposes of this opinion: (1) that any counterparty to the Warrant Agreement or the Subscription Rights Agreement, as applicable (each a Counterparty), to the extent not a natural
person, will be duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (2) that any Counterparty will be duly qualified to engage in the activities contemplated by the Warrant Agreement or
Subscription Rights Agreement, as applicable; (3) that the terms of the Warrants or Rights and of their issuance will be consistent with the Warrant Agreement or Subscription Rights Agreement, as applicable; (4) that the Warrant Agreement
or Subscription Rights Agreement, as applicable, will be duly authorized, executed and delivered by the Counterparty and will constitute the legal, valid and binding obligation of the Counterparty enforceable against the Counterparty in accordance
with its terms; and (5) that the Counterparty will have the requisite organizational and legal power and authority to perform its obligations under the Warrant Agreement or Subscription Rights Agreement, as applicable.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, we are of the opinion that:
1. Upon the completion of all Authorizing Proceedings relating to the Securities that are Common
Stock and the due execution, countersignature and delivery of certificates evidencing such Common Stock and assuming that at the time of any offering or sale of such Common Stock, the Company shall have such number of shares of Common Stock as are
included in such offering or sale authorized and available for issuance, the Common Stock will be duly authorized and, when and if delivered against payment therefore in accordance with the resolutions of the Board of Directors of the Company
authorizing their issuance, will be validly issued, fully paid and nonassessable.
2. Upon
the completion of all Authorizing Proceedings relating to the Securities that are Preferred Stock, and upon the classification of such Preferred Stock in accordance with applicable law and the filing of appropriate designations with the Secretary of
the Commonwealth of Pennsylvania and the due execution, countersignature and delivery of certificates evidencing the Preferred Stock, and assuming that at the time of any offering or sale of such Preferred Stock, the Company shall have such number
of shares of Preferred Stock as are included in such offering or sale authorized and available for issuance, the Preferred Stock will be duly authorized and, when and if delivered against payment therefore in accordance with the resolutions of the
Board of Directors of the Company authorizing their issuance, will be validly issued, fully paid and nonassessable.
IGATE Corporation
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3. Upon completion of all Authorizing
Proceedings relating to the Securities that are Debt Securities, and upon the due execution and delivery of the Debt Securities pursuant to an Indenture, and assuming that at the time of any offering or sale of Debt Securities that are exchangeable
or convertible into other Securities, such other Securities and any additional Securities underlying such Securities are authorized and available for issuance, the Debt Securities will be duly authorized, and, when and if delivered against payment
therefore in accordance with the resolutions of the Board of Directors of the Company authorizing their issuance, binding obligations of the Company enforceable against the Company in accordance with their terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law).
4. Upon completion of all Authorizing Proceedings relating to the Securities that are Warrants
and the due execution, authentication and delivery of documents representing such Warrants and any related Warrant Agreements, and assuming that at the time of any offering or sale of such Warrants, the Company shall have such number of shares of
Common Stock, shares of Preferred Stock , Debt Securities or other securities and/or any combination of the foregoing as are issuable upon exercise of such Warrants authorized and available for issuance, the Warrants will be duly authorized and,
when and if delivered against payment therefore in accordance with the resolutions of the Board of Directors of the Company authorizing their issuance, binding obligations of the Company enforceable against the Company in accordance with their
respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, and subject to general principles of equity (regardless of whether enforcement is
sought in a proceeding in equity or at law).
5. Upon completion of all Authorizing
Proceedings relating to the Securities that are Units and the due execution, authentication and delivery of documents representing such Units and any other documents related to such Units, and assuming that at the time of any offering or sale of
such Units, the Company shall have such number of Securities authorized and available for issuance that are components of such Units or are issuable upon exercise, exchange or conversion of any components of such Units, the Units will be duly
authorized and, when and if delivered against payment therefore in accordance with the resolutions of the Board of Directors of the Company authorizing their issuance, binding obligations of the Company enforceable against the Company in accordance
with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, and subject to general principles of equity (regardless of whether
enforcement is sought in a proceeding in equity or at law).
6. Upon completion of all
Authorizing Proceedings relating to Securities that are Rights and the due execution, authentication and delivery of documents representing such
IGATE Corporation
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Rights and any other documents related to such Rights, and assuming that at the time of any offering or sale of such Rights, the Company shall have such number of shares of Common Stock, shares
of Preferred Stock, Debt Securities or any combination of the foregoing authorized and available for issuance that are components of such Rights or are issuable upon exercise, exchange, subscription or conversion of any components of such Rights,
the Rights will be duly authorized and, when and if delivered against payment therefore in accordance with the resolutions of the Board of Directors of the Company authorizing their issuance, binding obligations of the Company enforceable against
the Company in accordance with their respective terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors rights generally, and subject to general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law)
7. The
Selling Shareholder Shares are validly issued, fully paid and nonassessable.
It is understood that this opinion is to be used only in
connection with the offer and sale of the Securities and the Selling Shareholder Shares while the Registration Statement is in effect. An additional legal opinion shall be issued and filed with the Commission upon the issuance of the Securities in
accordance with the terms of the Registration Statement.
We assume no obligation to supplement this opinion if any applicable law changes
after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
We hereby
consent to the filing of this opinion with the Commission as an exhibit to the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act and to the use of this firms name under
the caption Legal Matters in the Registration Statement, the related Prospectus and any prospectus supplement included in the Registration Statement. In giving such consent, we do not hereby admit that we are in the category of persons
whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.
As counsel to the
Company, we have furnished this opinion in connection with the filing of the Registration Statement.
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Very truly yours, |
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/s/ Pepper Hamilton LLP |
Exhibit 12.1
Calculation of Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Stock Dividends
(in thousands)
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Nine Months Ended September 30, |
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Year Ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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2009 |
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Earnings: |
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Income before income taxes |
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99,808 |
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180,210 |
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130,908 |
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84,272 |
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57,694 |
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29,160 |
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Add fixed charges |
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43,161 |
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89,785 |
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84,388 |
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51,783 |
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891 |
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642 |
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Total earnings (A) |
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142,969 |
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269,995 |
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215,296 |
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136,055 |
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58,585 |
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29,802 |
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Fixed charges (1): |
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Interest on Senior Notes |
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29,044 |
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69,300 |
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69,300 |
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46,615 |
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Interest on Line of credit and term loans |
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8,476 |
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7,081 |
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7,835 |
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673 |
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Amortization of debt issuance costs |
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4,406 |
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11,620 |
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5,790 |
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3,625 |
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Interest on lease and vehicles |
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1,235 |
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1,784 |
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1,463 |
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870 |
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891 |
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643 |
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Total fixed charges (B) |
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43,161 |
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89,785 |
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84,388 |
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51,783 |
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891 |
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643 |
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Earnings to fixed charges ratio (A/B) |
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3.31 |
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3.01 |
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2.55 |
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2.63 |
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65.75 |
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46.39 |
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Preferred dividend inclusive of accretion to preferred stock on gross basis (C) |
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35,335 |
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44,240 |
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38,448 |
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31,485 |
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Earnings to combined fixed charges and preferred stock dividends ratio [A/(B+C)] |
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1.82 |
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2.01 |
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1.75 |
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1.63 |
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65.75 |
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46.39 |
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Fixed charges do not include the impact of loss on extinguishment of debt and interest associated with uncertain tax positions. |
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
IGATE Corporation:
We consent to the reference to our firm under the caption Experts in this Registration Statement on Form S-3 and related
prospectus of IGATE Corporation for the registration of (1) 23,384,095 shares of common stock and (2) an indeterminate amount of Common Stock, Preferred Stock, Debt Securities, Warrants, Units and Subscription Rights, and to the
incorporation by reference therein of our reports dated February 12, 2014, with respect to the consolidated financial statements of IGATE Corporation and the effectiveness of internal control over financial reporting of IGATE Corporation
included in its Annual Report on Form 10-K for the year ended December 31, 2013, filed with the Securities and Exchange Commission.
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/s/ Ernst & Young Associates LLP |
Gurgoan, India
December 4, 2014
Exhibit 25.1
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
x |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
WILMINGTON
TRUST, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
16-1486454
(I.R.S.
employer identification no.)
1100 North Market Street
Wilmington, DE 19890
(Address of principal executive offices)
Robert C. Fiedler
Vice
President and Counsel
1100 North Market Street
Wilmington, Delaware 19890
(302) 651-8541
(Name, address and telephone number of agent for service)
IGATE Corporation
(Exact
name of obligor as specified in its charter)
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Pennsylvania |
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25-1802235 |
(State of incorporation) |
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(I.R.S. employer identification no.) |
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100 Somerset Corporate Blvd.
Bridgewater, New Jersey |
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08807 |
(Address of principal executive offices) |
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(Zip Code) |
Debt Securities
(Title
of the indenture securities)
Item 1. GENERAL INFORMATION. Furnish the following information as to the trustee:
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(a) |
Name and address of each examining or supervising authority to which it is subject. |
Comptroller of Currency, Washington, D.C.
Federal Deposit Insurance Corporation, Washington, D.C.
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(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
Item 2. |
AFFILIATIONS WITH THE OBLIGOR. If the obligor is an affiliate of the trustee, describe each affiliation: |
Based upon an examination of the books and records of the trustee and upon information furnished by the obligor, the obligor is not an
affiliate of the trustee.
Item 16. |
LIST OF EXHIBITS. Listed below are all exhibits filed as part of this Statement of Eligibility and Qualification. |
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1. |
A copy of the Charter for Wilmington Trust, National Association, incorporated by reference to Exhibit 1 of Form T-1. |
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2. |
The authority of Wilmington Trust, National Association to commence business was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 of Form T-1.
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3. |
The authorization to exercise corporate trust powers was granted under the Charter for Wilmington Trust, National Association, incorporated herein by reference to Exhibit 1 of Form T-1. |
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4. |
A copy of the existing By-Laws of Trustee, as now in effect, incorporated herein by reference to Exhibit 4 of form T-1. |
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6. |
The consent of Trustee as required by Section 321(b) of the Trust Indenture Act of 1939, incorporated herein by reference to Exhibit 6 of Form T-1. |
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7. |
Current Report of the Condition of Trustee, published pursuant to law or the requirements of its supervising or examining authority, attached as Exhibit 7. |
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Wilmington Trust, National Association, a national 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 Minneapolis and State of
Minnesota on the 4th day of December, 2014.
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WILMINGTON TRUST, NATIONAL ASSOCIATION |
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By: |
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/s/ Jane Schweiger |
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Name: |
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Jane Schweiger |
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Title: |
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Vice President |
EXHIBIT 1
CHARTER OF WILMINGTON TRUST, NATIONAL ASSOCIATION
ARTICLES OF ASSOCIATION
OF
WILMINGTON TRUST,
NATIONAL ASSOCIATION
For the purpose of organizing an association to perform any lawful activities of national banks, the undersigned
do enter into the following articles of association:
FIRST. The title of this association shall be Wilmington Trust, National Association.
SECOND. The main office of the association shall be in the City of Wilmington, County of New Castle, State of Delaware. The general business of the
association shall be conducted at its main office and its branches.
THIRD. The board of directors of this association shall consist of not less than five
nor more than twenty-five persons, unless the OCC has exempted the bank from the 25-member limit. The exact number is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a
majority of the shareholders at any annual or special meeting thereof. Each director shall own common or preferred stock of the association or of a holding company owning the association, with an aggregate par, fair market or equity value $1,000.
Determination of these values may be based as of either (i) the date of purchase or (ii) the date the person became a director, whichever value is greater. Any combination of common or preferred stock of the association or holding company
may be used.
Any vacancy in the board of directors may be filled by action of a majority of the remaining directors between meetings of
shareholders. The board of directors may not increase the number of directors between meetings of shareholders to a number which:
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exceeds by more than two the number of directors last elected by shareholders where the number was 15 or less; or |
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exceeds by more than four the number of directors last elected by shareholders where the number was 16 or more, but in no event shall the number of directors exceed 25, unless the OCC has exempted the bank from the
25-member limit. |
Directors shall be elected for terms of one year and until their successors are elected and qualified.
Terms of directors, including directors selected to fill vacancies, shall expire at the next regular meeting of shareholders at which directors are elected, unless the directors resign or are removed from office. Despite the expiration of a
directors term, the director shall continue to serve until his or her successor is elected and qualifies or until there is a decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the board of directors, without voting power or power of final decision in matters concerning the business of
the association, may be appointed by resolution of a majority of the full board of directors, or by resolution of shareholders at any annual or special meeting. Honorary or advisory directors shall not be counted to determine the number of directors
of the association or the presence of a quorum in connection with any board action, and shall not be required to own qualifying shares.
FOURTH. There
shall be an annual meeting of the shareholders to elect directors and transact whatever other business may be brought before the meeting. It shall be held at the main office or any other convenient place the board of directors may designate, on the
day of each year specified therefor in
the bylaws, or, if that day falls on a legal holiday in the state in which the association is located, on the next following banking day. If no election is held on the day fixed, or in the event
of a legal holiday on the following banking day, an election may be held on any subsequent day within 60 days of the day fixed, to be designated by the board of directors, or, if the directors fail to fix the day, by shareholders representing
two-thirds of the shares issued and outstanding. In all cases at least 10 days advance notice of the time, place and purpose of a shareholders meeting shall be given to the shareholders by first class mail, unless the OCC determines that an
emergency circumstance exists. The sole shareholder of the bank is permitted to waive notice of the shareholders meeting.
In all
elections of directors, the number of votes each common shareholder may cast will be determined by multiplying the number of shares such shareholder owns by the number of directors to be elected. Those votes may be cumulated and cast for a single
candidate or may be distributed among two or more candidates in the manner selected by the shareholder. If, after the first ballot, subsequent ballots are necessary to elect directors, a shareholder may not vote shares that he or she has already
fully cumulated and voted in favor of a successful candidate. On all other questions, each common shareholder shall be entitled to one vote for each share of stock held by him or her.
Nominations for election to the board of directors may be made by the board of directors or by any stockholder of any outstanding class of
capital stock of the association entitled to vote for election of directors. Nominations other than those made by or on behalf of the existing management shall be made in writing and be delivered or mailed to the president of the association not
less than 14 days nor more than 50 days prior to any meeting of shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nominations shall be mailed or
delivered to the president of the association not later than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the
notifying shareholder:
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The name and address of each proposed nominee. |
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2) |
The principal occupation of each proposed nominee. |
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3) |
The total number of shares of capital stock of the association that will be voted for each proposed nominee. |
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4) |
The name and residence address of the notifying shareholder. |
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5) |
The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and
the vote tellers may disregard all votes cast for each such nominee. No bylaw may unreasonably restrict the nomination of directors by shareholders.
A director may resign at any time by delivering written notice to the board of directors, its chairperson, or to the
association, which resignation shall be effective when the notice is delivered unless the notice specifies a later effective date.
A director may be removed by shareholders at a meeting called to remove the director, when notice of the meeting stating that
the purpose or one of the purposes is to remove the director is provided, if there is a failure to fulfill one of the affirmative requirements for qualification, or for cause; provided, however, that a director may not be removed if the number of
votes sufficient to elect the director under cumulative voting is voted against the directors removal.
FIFTH. The authorized amount of capital stock of this association shall be ten thousand shares of common stock of
the par value of one hundred dollars ($100) each; but said capital stock may be increased or decreased from time to time, according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the association shall have any preemptive or preferential right of subscription to
any shares of any class of stock of the association, whether now or hereafter authorized, or to any obligations convertible into stock of the association, issued, or sold, nor any right of subscription to any thereof other than such, if any, as the
board of directors, in its discretion, may from time to time determine and at such price as the board of directors may from time to time fix. Preemptive rights also must be approved by a vote of holders of two-thirds of the banks outstanding
voting shares. Unless otherwise specified in these articles of association or required by law, (1) all matters requiring shareholder action, including amendments to the articles of association, must be approved by shareholders owning a majority
voting interest in the outstanding voting stock, and (2) each shareholder shall be entitled to one vote per share.
Unless otherwise
specified in these articles of association or required by law, all shares of voting stock shall be voted together as a class, on any matters requiring shareholder approval. If a proposed amendment would affect two or more classes or series in the
same or a substantially similar way, all the classes or series so affected must vote together as a single voting group on the proposed amendment.
Shares of one class or series may be issued as a dividend for shares of the same class or series on a pro rata basis and without
consideration. Shares of one class or series may be issued as share dividends for a different class or series of stock if approved by a majority of the votes entitled to be cast by the class or series to be issued, unless there are no outstanding
shares of the class or series to be issued. Unless otherwise provided by the board of directors, the record date for determining shareholders entitled to a share dividend shall be the date authorized by the board of directors for the share dividend.
Unless otherwise provided in the bylaws, the record date for determining shareholders entitled to notice of and to vote at any meeting is
the close of business on the day before the first notice is mailed or otherwise sent to the shareholders, provided that in no event may a record date be more than 70 days before the meeting.
If a shareholder is entitled to fractional shares pursuant to a stock dividend, consolidation or merger, reverse stock split or otherwise, the
association may: (a) issue fractional shares; (b) in lieu of the issuance of fractional shares, issue script or warrants entitling the holder to receive a full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the associations stock, make reasonable arrangements to provide the shareholder with an opportunity to realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the fraction to the shareholder; or (e) sell full shares representing all the fractions at public auction or to the highest bidder after having solicited and received
sealed bids from at least three licensed stock brokers; and distribute the proceeds pro rata to shareholders who otherwise would be entitled to the fractional shares. The holder of a fractional share is entitled to exercise the rights for
shareholder, including the right to vote, to receive dividends, and to participate in the assets of the association upon liquidation, in proportion to the fractional interest. The holder of script or warrants is not entitled to any of these rights
unless the script or warrants explicitly provide for such rights. The script or warrants may be subject to such additional conditions as: (1) that the script or warrants will become void if not exchanged for full shares before a specified date;
and (2) that the shares for which the script or warrants are exchangeable may be sold at the option of the association and the proceeds paid to scriptholders.
The association, at any time and from time to time, may authorize and issue debt obligations,
whether or not subordinated, without the approval of the shareholders. Obligations classified as debt, whether or not subordinated, which may be issued by the association without the approval of shareholders, do not carry voting rights on any issue,
including an increase or decrease in the aggregate number of the securities, or the exchange or reclassification of all or part of securities into securities of another class or series.
SIXTH. The board of directors shall appoint one of its members president of this association, and one of its members chairperson of the board and shall have
the power to appoint one or more vice presidents, a secretary who shall keep minutes of the directors and shareholders meetings and be responsible for authenticating the records of the association, and such other officers and employees
as may be required to transact the business of this association.
A duly appointed officer may appoint one or more officers or assistant
officers if authorized by the board of directors in accordance with the bylaws.
The board of directors shall have the power to:
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1) |
Define the duties of the officers, employees, and agents of the association. |
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2) |
Delegate the performance of its duties, but not the responsibility for its duties, to the officers, employees, and agents of the association. |
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3) |
Fix the compensation and enter into employment contracts with its officers and employees upon reasonable terms and conditions consistent with applicable law. |
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4) |
Dismiss officers and employees. |
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5) |
Require bonds from officers and employees and to fix the penalty thereof. |
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6) |
Ratify written policies authorized by the associations management or committees of the board. |
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7) |
Regulate the manner in which any increase or decrease of the capital of the association shall be made, provided that nothing herein shall restrict the power of shareholders to increase or decrease the capital of the
association in accordance with law, and nothing shall raise or lower from two-thirds the percentage required for shareholder approval to increase or reduce the capital. |
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8) |
Manage and administer the business and affairs of the association. |
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9) |
Adopt initial bylaws, not inconsistent with law or the articles of association, for managing the business and regulating the affairs of the association. |
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10) |
Amend or repeal bylaws, except to the extent that the articles of association reserve this power in whole or in part to shareholders. |
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12) |
Generally perform all acts that are legal for a board of directors to perform. |
SEVENTH. The board of
directors shall have the power to change the location of the main office to any other place within the limits of Wilmington, Delaware, without the approval of the shareholders, or with a vote of shareholders owning two-thirds of the stock of such
association for a relocation outside such limits and upon receipt of a certificate of approval from the Comptroller of the Currency, to any other location within or outside the limits of Wilmington Delaware, but not more than 30 miles beyond such
limits. The board of directors shall have the power to establish or change the location of any branch or branches of the association to any other location permitted under applicable law, without approval of shareholders, subject to approval by the
Comptroller of the Currency.
EIGHTH. The corporate existence of this association shall continue until termination according to the laws of the
United States.
NINTH. The board of directors of this association, or any one or more shareholders owning, in the aggregate, not less than 50 percent of
the stock of this association, may call a special meeting of shareholders at any time. Unless otherwise provided by the bylaws or the laws of the United States, a notice of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given at least 10 days prior to the meeting by first-class mail, unless the OCC determines that an emergency circumstance exists. If the association is a wholly-owned subsidiary, the sole shareholder may waive notice of the
shareholders meeting. Unless otherwise provided by the bylaws or these articles, any action requiring approval of shareholders must be effected at a duly called annual or special meeting.
TENTH. For purposes of this Article Tenth, the term institution-affiliated party shall mean any institution-affiliated party of the association as
such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be
indemnified or reimbursed by the association for reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or
investigative, in accordance with and to the fullest extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not
indemnify such institution-affiliated parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an
action or proceeding (or part thereof) initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or
proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not
parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or
her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the
safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection
with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or
on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that
such institution-affiliated party (or his or her heirs, executors or administrators) is ultimately found not to be entitled to indemnification as authorized by these articles of association and
(b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is not obtainable, then approval by stockholders. To the extent permitted by law, the board
of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in an administrative proceeding or civil action
and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written opinion of counsel as to whether the
conditions delineated in the first four paragraphs of this Article Tenth have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board of directors may rely on such opinion in authorizing
the requested indemnification.
In the event that all of the members of the board of directors are named as respondents in an
administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of counsel as to whether the conditions
delineated in the first four paragraphs of this Article Tenth have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the advancement of expenses provided in these articles of
association (a) shall be available with respect to events occurring prior to the adoption of these articles of association, (b) shall continue to exist after any restrictive amendment of these articles of association with respect to events
occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of applicable law in effect at the
time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her heirs, executors or
administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of indemnification and to the
advancement of expenses provided in these articles of association shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution affiliated party (or his or her heirs, executors or
administrators) may now or hereafter be otherwise entitled whether contained in these articles of association, the bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement providing such indemnification, the
creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these articles of association shall not be deemed
exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor, against the
association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If this Article
Tenth or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this Article Tenth shall remain fully
enforceable.
The association may, upon affirmative vote of a majority of its board of directors, purchase
insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these articles of association; provided, however, that no such insurance shall include coverage to pay or reimburse any
institution-affiliated party for the cost of any judgment or civil money penalty assessed against such person in an administrative proceeding or civil action commenced by any federal banking agency. Such insurance may, but need not, be for the
benefit of all institution-affiliated parties.
ELEVENTH. These articles of association may be amended at any regular or special meeting of the
shareholders by the affirmative vote of the holders of a majority of the stock of this association, unless the vote of the holders of a greater amount of stock is required by law, and in that case by the vote of the holders of such greater amount.
The associations board of directors may propose one or more amendments to the articles of association for submission to the shareholders.
EXHIBIT 4
BY-LAWS OF WILMINGTON TRUST, NATIONAL ASSOCIATION
AMENDED AND RESTATED BYLAWS
OF
WILMINGTON TRUST,
NATIONAL ASSOCIATION
ARTICLE I
Meetings of Shareholders
Section 1. Annual Meeting. The annual meeting of the shareholders to elect directors and transact whatever other business may
properly come before the meeting shall be held at the main office of the association, Rodney Square North, 1100 Market Street, City of Wilmington, State of Delaware, at 1:00 oclock p.m. on the first Tuesday in March of each year, or at such
other place and time as the board of directors may designate, or if that date falls on a legal holiday in Delaware, on the next following banking day. Notice of the meeting shall be mailed by first class mail, postage prepaid, at least 10 days and
no more than 60 days prior to the date thereof, addressed to each shareholder at his/her address appearing on the books of the association. If, for any cause, an election of directors is not made on that date, or in the event of a legal holiday, on
the next following banking day, an election may be held on any subsequent day within 60 days of the date fixed, to be designated by the board of directors, or, if the directors fail to fix the date, by shareholders representing two-thirds of the
shares. In these circumstances, at least 10 days notice must be given by first class mail to shareholders.
Section 2.
Special Meetings. Except as otherwise specifically provided by statute, special meetings of the shareholders may be called for any purpose at any time by the board of directors or by any one or more shareholders owning, in the aggregate, not
less than fifty percent of the stock of the association. Every such special meeting, unless otherwise provided by law, shall be called by mailing, postage prepaid, not less than 10 days nor more than 60 days prior to the date fixed for the meeting,
to each shareholder at the address appearing on the books of the association a notice stating the purpose of the meeting.
The board of
directors may fix a record date for determining shareholders entitled to notice and to vote at any meeting, in reasonable proximity to the date of giving notice to the shareholders of such meeting. The record date for determining shareholders
entitled to demand a special meeting is the date the first shareholder signs a demand for the meeting describing the purpose or purposes for which it is to be held.
A special meeting may be called by shareholders or the board of directors to amend the articles of association or bylaws, whether or not such
bylaws may be amended by the board of directors in the absence of shareholder approval.
If an annual or special shareholders
meeting is adjourned to a different date, time, or place, notice need not be given of the new date, time or place, if the new date, time or place is announced at the meeting before adjournment, unless any additional items of business are to be
considered, or the association becomes aware of an intervening event materially affecting any matter to be voted on more than 10 days prior to the date to which the meeting is adjourned. If a new record date for the adjourned meeting is fixed,
however, notice of the adjourned meeting must be given to persons who are shareholders as of the new record date. If, however, the meeting to elect the directors is adjourned before the election takes place, at least ten days notice of the new
election must be given to the shareholders by first-class mail.
Section 3. Nominations of Directors. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any outstanding class of capital stock of the association entitled to vote for the election of directors. Nominations, other than those made by or on behalf of the existing
management of the association, shall be made in writing and shall be delivered or mailed to the president of the association and the Comptroller of the Currency, Washington, D.C., not less than 14 days nor more than 50 days prior to any meeting of
shareholders called for the election of directors; provided, however, that if less than 21 days notice of the meeting is given to shareholders, such nomination shall be mailed or delivered to the president of the association not later
than the close of business on the seventh day following the day on which the notice of meeting was mailed. Such notification shall contain the following information to the extent known to the notifying shareholder:
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(1) |
The name and address of each proposed nominee; |
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(2) |
The principal occupation of each proposed nominee; |
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(3) |
The total number of shares of capital stock of the association that will be voted for each proposed nominee; |
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(4) |
The name and residence of the notifying shareholder; and |
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(5) |
The number of shares of capital stock of the association owned by the notifying shareholder. |
Nominations not made in accordance herewith may, in his/her discretion, be disregarded by the chairperson of the meeting, and upon his/her
instructions, the vote tellers may disregard all votes cast for each such nominee.
Section 4. Proxies. Shareholders may vote
at any meeting of the shareholders by proxies duly authorized in writing, but no officer or employee of this association shall act as proxy. Proxies shall be valid only for one meeting, to be specified therein, and any adjournments of such meeting.
Proxies shall be dated and filed with the records of the meeting. Proxies with facsimile signatures may be used and unexecuted proxies may be counted upon receipt of a written confirmation from the shareholder. Proxies meeting the above requirements
submitted at any time during a meeting shall be accepted.
Section 5. Quorum. A majority of the outstanding capital stock,
represented in person or by proxy, shall constitute a quorum at any meeting of shareholders, unless otherwise provided by law, or by the shareholders or directors pursuant to Article IX, Section 2, but less than a quorum may adjourn any
meeting, from time to time, and the meeting may be held, as adjourned, without further notice. A majority of the votes cast shall decide every question or matter submitted to the shareholders at any meeting, unless otherwise provided by law or by
the articles of association, or by the shareholders or directors pursuant to Article IX, Section 2. If a meeting for the election of directors is not held on the fixed date, at least 10 days notice must be given by first-class mail to the
shareholders.
ARTICLE II
Directors
Section 1. Board of Directors. The board of directors shall have the power to manage and administer the business and affairs of
the association. Except as expressly limited by law, all corporate powers of the association shall be vested in and may be exercised by the board of directors.
Section 2. Number. The board of directors shall consist of not less than five nor more than twenty-five members, unless the OCC
has exempted the bank from the 25-member limit. The exact number within such minimum and maximum limits is to be fixed and determined from time to time by resolution of a majority of the full board of directors or by resolution of a majority of the
shareholders at any meeting thereof.
Section 3. Organization Meeting. The secretary or treasurer, upon receiving the
certificate of the judges of the result of any election, shall notify the directors-elect of their election and of the time at which they are required to meet at the main office of the association, or at such other place in the cities of Wilmington,
Delaware or Buffalo, New York, to organize the new board of directors and elect and appoint officers of the association for the succeeding year. Such meeting shall be held on the day of the election or as soon thereafter as practicable, and, in any
event, within 30 days thereof. If, at the time fixed for such meeting, there shall not be a quorum, the directors present may adjourn the meeting, from time to time, until a quorum is obtained.
Section 4. Regular Meetings. The Board of Directors may, at any time and from time to time, by resolution designate the place,
date and hour for the holding of a regular meeting, but in the absence of any such designation, regular meetings of the board of directors shall be held, without notice, on the first Tuesday of each March, June and September, and on the second
Tuesday of each December at the main office or other such place as the board of directors may designate. When any regular meeting of the board of directors falls upon a holiday, the meeting shall be held on the next banking business day unless the
board of directors shall designate another day.
Section 5. Special Meetings. Special meetings of the board of directors may
be called by the Chairman of the Board of the association, or at the request of two or more directors. Each member of the board of directors shall be given notice by telegram, first class mail, or in person stating the time and place of each special
meeting.
Section 6. Quorum. A majority of the entire board then in office shall constitute a quorum at any meeting, except
when otherwise provided by law or these bylaws, but a lesser number may adjourn any meeting, from time to time, and the meeting may be held, as adjourned, without further notice. If the number of directors present at the meeting is reduced below the
number that would constitute a quorum, no business may be transacted, except selecting directors to fill vacancies in conformance with Article II, Section 7. If a quorum is present, the board of directors may take action through the vote of a
majority of the directors who are in attendance.
Section 7. Meetings by Conference Telephone. Any one or more members of the
board of directors or any committee thereof may participate in a meeting of such board or committees by means of a conference telephone or similar communications equipment allowing all persons participating in the meeting to hear each other at the
same time. Participation in a meeting by such means shall constitute presence in person at such meeting.
Section 8.
Procedures. The order of business and all other matters of procedure at every meeting of the board of directors may be determined by the person presiding at the meeting.
Section 9. Removal of Directors. Any director may be removed for cause, at any
meeting of stockholders notice of which shall have referred to the proposed action, by vote of the stockholders. Any director may be removed without cause, at any meeting of stockholders notice of which shall have referred to the proposed action, by
the vote of the holders of a majority of the shares of the Corporation entitled to vote. Any director may be removed for cause, at any meeting of the directors notice of which shall have referred to the proposed action, by vote of a majority of the
entire Board of Directors.
Section 10. Vacancies. When any vacancy occurs among the directors, a majority of the remaining
members of the board of directors, according to the laws of the United States, may appoint a director to fill such vacancy at any regular meeting of the board of directors, or at a special meeting called for that purpose at which a quorum is
present, or if the directors remaining in office constitute fewer than a quorum of the board of directors, by the affirmative vote of a majority of all the directors remaining in office, or by shareholders at a special meeting called for that
purpose in conformance with Section 2 of Article I. At any such shareholder meeting, each shareholder entitled to vote shall have the right to multiply the number of votes he or she is entitled to cast by the number of vacancies being filled
and cast the product for a single candidate or distribute the product among two or more candidates. A vacancy that will occur at a specific later date (by reason of a resignation effective at a later date) may be filled before the vacancy occurs but
the new director may not take office until the vacancy occurs.
ARTICLE III
Committees of the Board
The board of directors has power over and is solely responsible for the management, supervision, and administration of the association. The
board of directors may delegate its power, but none of its responsibilities, to such persons or committees as the board may determine.
The board of directors must formally ratify written policies authorized by committees of the board of directors before such policies become
effective. Each committee must have one or more member(s), and who may be an officer of the association or an officer or director of any affiliate of the association, who serve at the pleasure of the board of directors. Provisions of the articles of
association and these bylaws governing place of meetings, notice of meeting, quorum and voting requirements of the board of directors, apply to committees and their members as well. The creation of a committee and appointment of members to it must
be approved by the board of directors.
Section 1. Loan Committee. There shall be a loan committee composed of not less than 2
directors, appointed by the board of directors annually or more often. The loan committee, on behalf of the bank, shall have power to discount and purchase bills, notes and other evidences of debt, to buy and sell bills of exchange, to examine and
approve loans and discounts, to exercise authority regarding loans and discounts, and to exercise, when the board of directors is not in session, all other powers of the board of directors that may lawfully be delegated. The loan committee shall
keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto shall be entered in the minutes
of the board of directors.
Section 2. Investment Committee. There shall be an investment committee composed of not less than
2 directors, appointed by the board of directors annually or more often. The investment committee, on behalf of the bank, shall have the power to ensure adherence to the investment policy, to recommend amendments thereto, to purchase and sell
securities, to exercise authority regarding
investments and to exercise, when the board of directors is not in session, all other powers of the board of directors regarding investment securities that may be lawfully delegated. The
investment committee shall keep minutes of its meetings, and such minutes shall be submitted at the next regular meeting of the board of directors at which a quorum is present, and any action taken by the board of directors with respect thereto
shall be entered in the minutes of the board of directors.
Section 3. Examining Committee. There shall be an examining
committee composed of not less than 2 directors, exclusive of any active officers, appointed by the board of directors annually or more often. The duty of that committee shall be to examine at least once during each calendar year and within 15
months of the last examination the affairs of the association or cause suitable examinations to be made by auditors responsible only to the board of directors and to report the result of such examination in writing to the board of directors at the
next regular meeting thereafter. Such report shall state whether the association is in a sound condition, and whether adequate internal controls and procedures are being maintained and shall recommend to the board of directors such changes in the
manner of conducting the affairs of the association as shall be deemed advisable.
Notwithstanding the provisions of the first paragraph
of this section 3, the responsibility and authority of the Examining Committee may, if authorized by law, be given over to a duly constituted audit committee of the associations parent corporation by a resolution duly adopted by the board of
directors.
Section 4. Trust Audit Committee. There shall be a trust audit committee in conformance with Section 1 of
Article V.
Section 5. Other Committees. The board of directors may appoint, from time to time, from its own members,
compensation, special litigation and other committees of one or more persons, for such purposes and with such powers as the board of directors may determine.
However, a committee may not:
|
(1) |
Authorize distributions of assets or dividends; |
|
(2) |
Approve action required to be approved by shareholders; |
|
(3) |
Fill vacancies on the board of directors or any of its committees; |
|
(4) |
Amend articles of association; |
|
(5) |
Adopt, amend or repeal bylaws; or |
|
(6) |
Authorize or approve issuance or sale or contract for sale of shares, or determine the designation and relative rights, preferences and limitations of a class or series of shares. |
Section 6. Committee Members Fees. Committee members may receive a fee for their services as committee members and traveling
and other out-of-pocket expenses incurred in attending any meeting of a committee of which they are a member. The fee may be a fixed sum to be paid for attending each meeting or a fixed sum to be paid quarterly, or semiannually, irrespective of the
number of meetings attended or not attended. The amount of the fee and the basis on which it shall be paid shall be determined by the Board of Directors.
ARTICLE IV
Officers and Employees
Section 1. Chairperson of the Board. The board of directors shall appoint one of its members to be the chairperson of the board to
serve at its pleasure. Such person shall preside at all meetings of the board of directors. The chairperson of the board shall supervise the carrying out of the policies adopted or approved by the board of directors; shall have general executive
powers, as well as the specific powers conferred by these bylaws; and shall also have and may exercise such further powers and duties as from time to time may be conferred upon or assigned by the board of directors.
Section 2. President. The board of directors shall appoint one of its members to be the president of the association. In the
absence of the chairperson, the president shall preside at any meeting of the board of directors. The president shall have general executive powers and shall have and may exercise any and all other powers and duties pertaining by law, regulation, or
practice to the office of president, or imposed by these bylaws. The president shall also have and may exercise such further powers and duties as from time to time may be conferred or assigned by the board of directors.
Section 3. Vice President. The board of directors may appoint one or more vice presidents. Each vice president shall have such
powers and duties as may be assigned by the board of directors. One vice president shall be designated by the board of directors, in the absence of the president, to perform all the duties of the president.
Section 4. Secretary. The board of directors shall appoint a secretary, treasurer, or other designated officer who shall be
secretary of the board of directors and of the association and who shall keep accurate minutes of all meetings. The secretary shall attend to the giving of all notices required by these bylaws; shall be custodian of the corporate seal, records,
documents and papers of the association; shall provide for the keeping of proper records of all transactions of the association; shall have and may exercise any and all other powers and duties pertaining by law, regulation or practice to the office
of treasurer, or imposed by these bylaws; and shall also perform such other duties as may be assigned from time to time, by the board of directors.
Section 5. Other Officers. The board of directors may appoint one or more assistant vice presidents, one or more trust officers,
one or more assistant secretaries, one or more assistant treasurers, one or more managers and assistant managers of branches and such other officers and attorneys in fact as from time to time may appear to the board of directors to be required or
desirable to transact the business of the association. Such officers shall respectively exercise such powers and perform such duties as pertain to their several offices, or as may be conferred upon or assigned to them by the board of directors, the
chairperson of the board, or the president. The board of directors may authorize an officer to appoint one or more officers or assistant officers.
Section 6. Tenure of Office. The president and all other officers shall hold office for the current year for which the board of
directors was elected, unless they shall resign, become disqualified, or be removed; and any vacancy occurring in the office of president shall be filled promptly by the board of directors.
Section 7. Resignation. An officer may resign at any time by delivering notice to the association. A resignation is effective when
the notice is given unless the notice specifies a later effective date.
ARTICLE V
Fiduciary Activities
Section 1. Trust Audit Committee. There shall be a Trust Audit Committee composed of not less than 2 directors, appointed by the
board of directors, which shall, at least once during each calendar year make suitable audits of the associations fiduciary activities or cause suitable audits to be made by auditors responsible only to the board, and at such time shall
ascertain whether fiduciary powers have been administered according to law, Part 9 of the Regulations of the Comptroller of the Currency, and sound fiduciary principles. Such committee: (1) must not include any officers of the bank or an
affiliate who participate significantly in the administration of the banks fiduciary activities; and (2) must consist of a majority of members who are not also members of any committee to which the board of directors has delegated power
to manage and control the fiduciary activities of the bank.
Notwithstanding the provisions of the first paragraph of this section 1, the
responsibility and authority of the Trust Audit Committee may, if authorized by law, be given over to a duly constituted audit committee of the associations parent corporation by a resolution duly adopted by the board of directors.
Section 2. Fiduciary Files. There shall be maintained by the association all fiduciary records necessary to assure that its
fiduciary responsibilities have been properly undertaken and discharged.
Section 3. Trust Investments. Funds held in a
fiduciary capacity shall be invested according to the instrument establishing the fiduciary relationship and applicable law. Where such instrument does not specify the character and class of investments to be made, but does vest in the association
investment discretion, funds held pursuant to such instrument shall be invested in investments in which corporate fiduciaries may invest under applicable law.
ARTICLE VI
Stock and
Stock Certificates
Section 1. Transfers. Shares of stock shall be transferable on the books of the association, and a
transfer book shall be kept in which all transfers of stock shall be recorded. Every person becoming a shareholder by such transfer shall in proportion to such shareholders shares, succeed to all rights of the prior holder of such shares. The
board of directors may impose conditions upon the transfer of the stock reasonably calculated to simplify the work of the association with respect to stock transfers, voting at shareholder meetings and related matters and to protect it against
fraudulent transfers.
Section 2. Stock Certificates. Certificates of stock shall bear the signature of the president (which
may be engraved, printed or impressed) and shall be signed manually or by facsimile process by the secretary, assistant secretary, treasurer, assistant treasurer, or any other officer appointed by the board of directors for that purpose, to be known
as an authorized officer, and the seal of the association shall be engraved thereon. Each certificate shall recite on its face that the stock represented thereby is transferable only upon the books of the association properly endorsed.
The board of directors may adopt or use procedures for replacing lost, stolen, or destroyed stock certificates as permitted by law.
The association may establish a procedure through which the beneficial owner of shares that are
registered in the name of a nominee may be recognized by the association as the shareholder. The procedure may set forth:
|
(1) |
The types of nominees to which it applies; |
|
(2) |
The rights or privileges that the association recognizes in a beneficial owner; |
|
(3) |
How the nominee may request the association to recognize the beneficial owner as the shareholder; |
|
(4) |
The information that must be provided when the procedure is selected; |
|
(5) |
The period over which the association will continue to recognize the beneficial owner as the shareholder; |
|
(6) |
Other aspects of the rights and duties created. |
ARTICLE VII
Corporate Seal
Section 1. Seal. The seal of the association shall be in such form as may be determined from time to time by the board of
directors. The president, the treasurer, the secretary or any assistant treasurer or assistant secretary, or other officer thereunto designated by the board of directors shall have authority to affix the corporate seal to any document requiring such
seal and to attest the same. The seal on any corporate obligation for the payment of money may be facsimile.
ARTICLE VIII
Miscellaneous Provisions
Section 1. Fiscal Year. The fiscal year of the association shall be the calendar year.
Section 2. Execution of Instruments. All agreements, indentures, mortgages, deeds, conveyances, transfers, certificates,
declarations, receipts, discharges, releases, satisfactions, settlements, petitions, schedules, accounts, affidavits, bonds, undertakings, proxies and other instruments or documents may be signed, executed, acknowledged, verified, delivered or
accepted on behalf of the association by the chairperson of the board, or the president, or any vice president, or the secretary, or the treasurer, or, if in connection with the exercise of fiduciary powers of the association, by any of those
offices or by any trust officer. Any such instruments may also be executed, acknowledged, verified, delivered or accepted on behalf of the association in such other manner and by such other officers as the board of directors may from time to time
direct. The provisions of this section 2 are supplementary to any other provision of these bylaws.
Section 3. Records. The
articles of association, the bylaws and the proceedings of all meetings of the shareholders, the board of directors, and standing committees of the board of directors shall be recorded in appropriate minute books provided for that purpose. The
minutes of each meeting shall be signed by the secretary, treasurer or other officer appointed to act as secretary of the meeting.
Section 4. Corporate Governance Procedures. To the extent not inconsistent with
federal banking statutes and regulations, or safe and sound banking practices, the association may follow the Delaware General Corporation Law, Del. Code Ann. tit. 8 (1991, as amended 1994, and as amended thereafter) with respect to matters of
corporate governance procedures.
Section 5. Indemnification. For purposes of this Section 5 of Article VIII, the term
institution-affiliated party shall mean any institution-affiliated party of the association as such term is defined in 12 U.S.C. 1813(u).
Any institution-affiliated party (or his or her heirs, executors or administrators) may be indemnified or reimbursed by the association for
reasonable expenses actually incurred in connection with any threatened, pending or completed actions or proceedings and appeals therein, whether civil, criminal, governmental, administrative or investigative, in accordance with and to the fullest
extent permitted by law, as such law now or hereafter exists; provided, however, that when an administrative proceeding or action instituted by a federal banking agency results in a final order or settlement pursuant to which such person:
(i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist from or to take any affirmative action
described in 12 U.S.C. 1818(b) with respect to the association, then the association shall require the repayment of all legal fees and expenses advanced pursuant to the next succeeding paragraph and may not indemnify such institution-affiliated
parties (or their heirs, executors or administrators) for expenses, including expenses for legal fees, penalties or other payments incurred. The association shall provide indemnification in connection with an action or proceeding (or part thereof)
initiated by an institution-affiliated party (or by his or her heirs, executors or administrators) only if such action or proceeding (or part thereof) was authorized by the board of directors.
Expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection with any action or
proceeding under 12 U.S.C. 164 or 1818 may be paid by the association in advance of the final disposition of such action or proceeding upon (a) a determination by the board of directors acting by a quorum consisting of directors who are not
parties to such action or proceeding that the institution-affiliated party (or his or her heirs, executors or administrators) has a reasonable basis for prevailing on the merits, (b) a determination that the indemnified individual (or his or
her heirs, executors or administrators) will have the financial capacity to reimburse the bank in the event he or she does not prevail, (c) a determination that the payment of expenses and fees by the association will not adversely affect the
safety and soundness of the association, and (d) receipt of an undertaking by or on behalf of such institution-affiliated party (or by his or her heirs, executors or administrators) to repay such advancement in the event of a final order or
settlement pursuant to which such person: (i) is assessed a civil money penalty, (ii) is removed from office or prohibited from participating in the conduct of the affairs of the association, or (iii) is required to cease and desist
from or to take any affirmative action described in 12 U.S.C. 1818(b) with respect to the association. In all other instances, expenses incurred by an institution-affiliated party (or by his or her heirs, executors or administrators) in connection
with any action or proceeding as to which indemnification may be given under these articles of association may be paid by the association in advance of the final disposition of such action or proceeding upon (a) receipt of an undertaking by or
on behalf of such institution-affiliated party (or by or on behalf of his or her heirs, executors or administrators) to repay such advancement in the event that such institution-affiliated party (or his or her heirs, executors or administrators) is
ultimately found not to be entitled to indemnification as authorized by these bylaws and (b) approval by the board of directors acting by a quorum consisting of directors who are not parties to such action or proceeding or, if such a quorum is
not obtainable, then approval by stockholders. To the extent permitted by law, the board of directors or, if applicable, the stockholders, shall not be required to find that the institution-affiliated party has met the applicable standard of conduct
provided by law for indemnification in connection with such action or proceeding.
In the event that a majority of the members of the board of directors are named as respondents in
an administrative proceeding or civil action and request indemnification, the remaining members of the board may authorize independent legal counsel to review the indemnification request and provide the remaining members of the board with a written
opinion of counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If independent legal counsel opines that said conditions have been met, the remaining members of the board
of directors may rely on such opinion in authorizing the requested indemnification.
In the event that all of the members of the board of
directors are named as respondents in an administrative proceeding or civil action and request indemnification, the board shall authorize independent legal counsel to review the indemnification request and provide the board with a written opinion of
counsel as to whether the conditions delineated in the first four paragraphs of this Section 5 of Article VIII have been met. If legal counsel opines that said conditions have been met, the board of directors may rely on such opinion in
authorizing the requested indemnification.
To the extent permitted under applicable law, the rights of indemnification and to the
advancement of expenses provided in these articles of association (a) shall be available with respect to events occurring prior to the adoption of these bylaws, (b) shall continue to exist after any restrictive amendment of these bylaws
with respect to events occurring prior to such amendment, (c) may be interpreted on the basis of applicable law in effect at the time of the occurrence of the event or events giving rise to the action or proceeding, or on the basis of
applicable law in effect at the time such rights are claimed, and (d) are in the nature of contract rights which may be enforced in any court of competent jurisdiction as if the association and the institution-affiliated party (or his or her
heirs, executors or administrators) for whom such rights are sought were parties to a separate written agreement.
The rights of
indemnification and to the advancement of expenses provided in these bylaws shall not, to the extent permitted under applicable law, be deemed exclusive of any other rights to which any such institution-affiliated party (or his or her heirs,
executors or administrators) may now or hereafter be otherwise entitled whether contained in the associations articles of association, these bylaws, a resolution of stockholders, a resolution of the board of directors, or an agreement
providing such indemnification, the creation of such other rights being hereby expressly authorized. Without limiting the generality of the foregoing, the rights of indemnification and to the advancement of expenses provided in these bylaws shall
not be deemed exclusive of any rights, pursuant to statute or otherwise, of any such institution-affiliated party (or of his or her heirs, executors or administrators) in any such action or proceeding to have assessed or allowed in his or her favor,
against the association or otherwise, his or her costs and expenses incurred therein or in connection therewith or any part thereof.
If
this Section 5 of Article VIII or any part hereof shall be held unenforceable in any respect by a court of competent jurisdiction, it shall be deemed modified to the minimum extent necessary to make it enforceable, and the remainder of this
Section 5 of Article VIII shall remain fully enforceable.
The association may, upon affirmative vote of a majority of its board of
directors, purchase insurance to indemnify its institution-affiliated parties to the extent that such indemnification is allowed in these bylaws; provided, however, that no such insurance shall include coverage for a final order assessing civil
money penalties against such persons by a bank regulatory agency. Such insurance may, but need not, be for the benefit of all institution-affiliated parties.
ARTICLE IX
Inspection and Amendments
Section 1. Inspection. A copy of the bylaws of the association, with all amendments, shall at all times be kept in a convenient
place at the main office of the association, and shall be open for inspection to all shareholders during banking hours.
Section 2. Amendments. The bylaws of the association may be amended, altered or repealed, at any regular meeting of the board of
directors, by a vote of a majority of the total number of the directors except as provided below, and provided that the following language accompany any such change.
I,
, certify
that: (1) I am the duly constituted (secretary or treasurer) of and secretary of its board of directors, and as such officer am the official custodian of its records; (2) the foregoing bylaws are the bylaws of the association, and all of
them are now lawfully in force and effect.
I have hereunto affixed my official signature on this day of
.
The associations shareholders may amend or repeal the bylaws even though the bylaws also may be
amended or repealed by the board of directors.
EXHIBIT 6
Section 321(b) Consent
Pursuant to
Section 321(b) of the Trust Indenture Act of 1939, as amended, Wilmington Trust, National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished by such authorities to
the Securities and Exchange Commission upon requests therefor.
|
|
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|
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|
|
|
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WILMINGTON TRUST, NATIONAL ASSOCIATION |
|
|
|
|
Dated: December 4, 2014 |
|
|
|
By: |
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/s/ Jane Schweiger |
|
|
|
|
|
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Name: |
|
Jane Schweiger |
|
|
|
|
|
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Title: |
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Vice President |
EXHIBIT 7
REPORT OF CONDITION
WILMINGTON TRUST, NATIONAL ASSOCIATION
As of the close of business on September 30, 2014
|
|
|
|
|
|
|
Thousands of Dollars |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
2,209,972 |
|
Securities: |
|
|
5,367 |
|
Federal funds sold and securities purchased under agreement to resell: |
|
|
0 |
|
Loans and leases held for sale: |
|
|
0 |
|
Loans and leases net of unearned income, allowance: |
|
|
457,849 |
|
Premises and fixed assets: |
|
|
8,535 |
|
Other real estate owned: |
|
|
243 |
|
Investments in unconsolidated subsidiaries and associated companies: |
|
|
0 |
|
Direct and indirect investments in real estate ventures: |
|
|
0 |
|
Intangible assets: |
|
|
2,539 |
|
Other assets: |
|
|
62,620 |
|
Total Assets: |
|
|
2,747,125 |
|
|
|
|
|
Thousands of Dollars |
|
LIABILITIES |
|
|
|
|
Deposits |
|
|
2,148,025 |
|
Federal funds purchased and securities sold under agreements to repurchase |
|
|
97,000 |
|
Other borrowed money: |
|
|
0 |
|
Other Liabilities: |
|
|
68,901 |
|
Total Liabilities |
|
|
2,313,926 |
|
|
|
|
|
Thousands of Dollars |
|
EQUITY CAPITAL |
|
|
|
|
Common Stock |
|
|
1,000 |
|
Surplus |
|
|
386,419 |
|
Retained Earnings |
|
|
46,207 |
|
Accumulated other comprehensive income |
|
|
(427 |
) |
Total Equity Capital |
|
|
433,199 |
|
Total Liabilities and Equity Capital |
|
|
2,747,125 |
|
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