We may, from
time to time, offer to sell debt securities in one or more offerings. This prospectus describes some of the general terms and conditions that may apply to these securities. We will provide the specific terms and conditions of these securities in one
or more supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest in our debt securities.
We may offer and sell these debt securities to or through one or more underwriters, dealers and agents or directly to purchasers, on a
continuous or delayed basis.
This prospectus is part of a registration statement on Form S-3 that we filed with the SEC utilizing a shelf registration process.
Under this shelf registration process, we may, at any time and from time to time, sell in one or more offerings any of our debt securities described in this prospectus.
This prospectus provides you with a general description of the debt securities that we may offer. Each time we sell debt securities, we will
provide a prospectus supplement that will contain specific information about the terms of that offering, including, but not limited to, the specific amounts, prices and terms of the securities offered. The prospectus supplement may also add, update
or change information contained in this prospectus.
You should carefully read both this prospectus and any prospectus supplement together
with the additional information described under the heading Incorporation by Reference.
References in this prospectus to
Delta, we, us and our and all similar references are to Delta Air Lines, Inc. and its wholly-owned subsidiaries. However, in the Description of the Debt Securities section of this
prospectus, references to we, us and our are to Delta Air Lines, Inc. and not to any of its subsidiaries.
DESCRIPTION OF THE DEBT SECURITIES
We have summarized below general terms and conditions of the debt securities that we may offer and sell pursuant to this prospectus. The
following summary of the debt securities is not complete. When we offer to sell a particular series of debt securities, we will describe the specific terms and conditions of the series in a prospectus supplement to this prospectus. We will also
indicate in the applicable prospectus supplement the extent to which the general terms and conditions described in this prospectus apply to the series of debt securities. The terms and conditions of the debt securities of a series may be different
in one or more respects from the terms and conditions described below.
We will issue the debt securities in one or more series under an
indenture between us and U.S. Bank National Association, as trustee, as supplemented from time to time (the indenture). The following summary of the provisions of the indenture does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all of the provisions of the indenture, including, but not limited to, definitions therein of certain terms. The particular terms and conditions of the debt securities of each series offered by any
prospectus supplement will be described in the applicable prospectus supplement. For a comprehensive description of any series of debt securities being offered to you pursuant to this prospectus, you should read both this prospectus and the
applicable prospectus supplement.
The indenture has been filed as an exhibit to the registration statement of which this prospectus forms
a part. A form of each supplemental indenture, reflecting the specific terms and provisions of each series of debt securities, will be filed with the SEC in connection with each offering of debt securities and will be incorporated by reference in
the registration statement of which this prospectus forms a part. You may obtain a copy of the indenture and any form of supplemental indenture that has been filed in the manner described under Where You Can Find More Information.
For purposes of this section of this prospectus, references to we, us and our are to Delta Air Lines, Inc.
and not to any of its subsidiaries. References to the applicable prospectus supplement are to the prospectus supplement to this prospectus that describes the specific terms and conditions of a series of debt securities.
General
We may offer the debt securities
from time to time in as many distinct series as we may determine. The indenture does not limit the amount of debt securities that we may issue under that indenture. We may, without the consent of the holders of the debt securities of any series,
issue additional debt securities ranking equally in right of payment with, and otherwise similar in all respects to, the debt securities of the series (except for the public offering price and the issue date) so that those additional debt securities
will be consolidated and form a single series with the debt securities of the series previously offered and sold.
The debt securities of
each series will be issued in fully registered form without interest coupons. We currently anticipate that the debt securities of each series offered and sold pursuant to this prospectus will be issued as global debt securities as described under
Book-Entry; Delivery and Form; Global Securities and will trade in book-entry form only.
Debt securities denominated in
U.S. dollars will be issued in denominations of $2,000 and any integral multiple of $1,000 in excess thereof, unless otherwise specified in the applicable prospectus supplement. If the debt securities of a series are denominated in a foreign or
composite currency, the applicable prospectus supplement will specify the denomination or denominations in which those debt securities will be issued.
We may issue the debt securities issued under the indenture as discount securities, which means they may be sold at a discount
below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may, for U.S. federal income tax purposes, be treated as if they were issued with
5
original issue discount, because of interest payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued with original issue
discount will be described in more detail in any applicable prospectus supplement.
Unless otherwise specified in the applicable
prospectus supplement, the debt securities of each series will not be listed on any securities exchange.
Provisions of the Indenture
The indenture provides that debt securities may be issued under it from time to time in one or more series. For each series of debt securities,
the applicable prospectus supplement will describe the following terms and conditions of that series of debt securities:
|
|
|
the title of the series of debt securities;
|
|
|
|
any limit upon the aggregate principal amount of the series of debt securities;
|
|
|
|
if other than U.S. dollars, the foreign currency or foreign currencies in which the series of debt securities will be denominated;
|
|
|
|
the date(s) on which the principal of the series of debt securities will be payable or the method of determination thereof;
|
|
|
|
the rate(s) at which the series of debt securities will bear interest, if any, the date(s) from which that interest will accrue, the date(s) on which that interest will be payable and the terms and conditions of any
deferral of interest, additional interest, if any, on the series of debt securities, the right, if any, to extend the interest payment periods and the duration of the extensions, and the record date(s) to determine to which holders interest is
payable;
|
|
|
|
the offices or agencies where the principal of and any interest on the series of debt securities will be payable;
|
|
|
|
the right, if any, to redeem the series of debt securities, in whole or in part, at our option and the period(s) within which, or the date(s) on which, the price(s) at which and any terms and conditions upon which the
series of debt securities may be so redeemed, pursuant to any sinking fund or otherwise;
|
|
|
|
the obligation, if any, for us to redeem, purchase or repay the series of debt securities pursuant to any mandatory redemption, sinking fund or analogous provisions or at the option of a holder thereof and the price(s)
at which and the period(s) within which or the date(s) on which, and any terms and conditions upon which the series of debt securities will be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
|
|
|
|
if other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the series of debt securities will be issuable;
|
|
|
|
the percentage of the principal amount at which the series of debt securities will be issued, and, if other than the principal amount thereof, the portion of the principal amount of the series of debt securities that
will be payable upon declaration of acceleration of the maturity thereof or provable in bankruptcy;
|
|
|
|
if other than the coin, currency or currencies in which the series of debt securities will be denominated, the coin, currency or currencies in which payment of the principal of or interest on the series of debt
securities will be payable, including composite currencies or currency units;
|
6
|
|
|
if the principal of or interest on the series of debt securities will be payable, at our election or the election of a holder thereof, in a coin or currency other than that in which the series of debt securities will be
denominated, the period(s) within which, and the terms and conditions upon which, such election may be made;
|
|
|
|
if the amount of payments of principal of and interest on the series of debt securities may be determined with reference to an index or formula based on a coin, currency, composite currency or currency unit other than
that in which the series of debt securities will be denominated, the manner in which such amounts will be determined;
|
|
|
|
whether and under what circumstances we will pay additional amounts on the series of debt securities held by a person who is not a U.S. person in respect of any tax, assessment or governmental charge withheld or
deducted and, if so, whether we will have the option to redeem the series of debt securities rather than pay such additional amounts;
|
|
|
|
any trustees, authenticating or paying agents, warrant agents, transfer agents or registrars with respect to the series of debt securities;
|
|
|
|
any deletion from, modification of or addition to the events of default or covenants with respect to the series of debt securities;
|
|
|
|
if the series of debt securities will be convertible into or exchangeable for any other security or property of ours, including, without limitation, securities of another person held by us or our affiliates and, if so,
the terms thereof;
|
|
|
|
the applicability, if any, of certain covenant defeasance provisions to such series under certain specified circumstances set forth in the indenture;
|
|
|
|
whether the series of debt securities will be issued in whole or in part in the form of one or more global securities and, in such case, the depositary for such global security, which depositary will be a clearing
agency registered under the Exchange Act; and
|
|
|
|
any other terms of the debt securities of the series.
|
Interest and Interest Rates
In the applicable prospectus supplement, we will designate the debt securities of a series as being either debt securities bearing interest at
a fixed rate of interest or debt securities bearing interest at a floating rate of interest. Each debt security will begin to accrue interest from the date on which it is originally issued. Interest on each such debt security will be payable in
arrears on the interest payment dates set forth in the applicable prospectus supplement and as otherwise described below and at maturity or, if earlier, the redemption date described below. Interest will be payable to the holder of record of the
debt securities at the close of business on the record date for each interest payment date, which record dates will be specified in such prospectus supplement.
If any date of payment of interest on or principal of a debt security, or any date fixed for redemption or repayment of such debt security,
falls on a date that is not a business day, then payment of interest or principal and premium, if any, may be made on the next succeeding business day with the same force and effect as if made on the date of payment or the date fixed for redemption,
and no interest shall accrue for the period after such date.
As used in the indenture, the term business day means, with
respect to debt securities of a series, unless otherwise specified in the applicable prospectus supplement, any day, other than a Saturday or Sunday, that is not a day on which banking institutions are authorized or obligated by law or executive
order to close in the place where the principal of and premium, if any, and interest on the debt securities are payable.
7
Payment and Transfer or Exchange
Principal of and premium, if any, and interest on the debt securities of each series will be payable, and the debt securities may be exchanged
or transferred, at the office or agency maintained by us in the continental United States for such purpose. Payment of principal of and premium, if any, and interest on a global security registered in the name of or held by The Depository Trust
Company, or DTC, or its nominee will be made in immediately available funds to DTC or its nominee, as the case may be, as the registered holder of such global security. If any of the debt securities is no longer represented by a global security,
payment of interest on certificated debt securities in definitive form may, at our option, be made by check mailed directly to holders at their registered addresses. See Book-Entry; Delivery and Form; Global Securities.
A holder may transfer or exchange any certificated debt securities in definitive form at the same location given in the preceding paragraph.
No service charge will be made for any exchange or registration of transfer of debt securities, but we may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in connection therewith.
We are not required to exchange or register a transfer of any debt security selected for redemption for a period of 15 days before mailing of
a notice of redemption of the debt security to be redeemed.
The registered holder of a debt security will be treated as the owner of it
for all purposes.
All amounts of principal of and premium, if any, or interest on the debt securities paid by us that remain unclaimed
two years after such payment was due and payable will be repaid to us, and the holders of such debt securities will thereafter look solely to us for payment.
Covenants
The indenture sets forth
limited covenants that will apply to each series of debt securities issued under the indenture, unless otherwise specified in the applicable prospectus supplement. However, unless otherwise specified in the applicable prospectus supplement, these
covenants do not, among other things:
|
|
|
limit the amount of indebtedness or lease obligations that may be incurred by us and our subsidiaries;
|
|
|
|
limit our ability or that of our subsidiaries to issue, assume or guarantee debt secured by liens; or
|
|
|
|
restrict us from paying dividends or making distributions on our capital stock or purchasing or redeeming our capital stock.
|
Consolidation, Merger and Sale of Assets
The indenture provides that we may consolidate with or merge with or into any other person, and may sell, transfer, or lease or convey all or
substantially all of our properties and assets to another person; provided that the following conditions are satisfied:
|
|
|
we are the continuing entity, or the resulting, surviving or transferee entity (the Successor) is a corporation organized and existing under the laws of the United States of America, any state thereof or the
District of Columbia and the Successor (if not us) will expressly assume, by supplemental indenture, all of our obligations under the debt securities and the indenture;
|
|
|
|
immediately after giving effect to such transaction, no default or event of default under the indenture has occurred and is continuing; and
|
|
|
|
the trustee receives from us an officers certificate and an opinion of counsel that the transaction and any such supplemental indenture comply with the applicable provisions of the indenture.
|
If we consolidate or merge with or into any other person or sell, transfer, lease or convey all or substantially all of our properties and
assets in accordance with the indenture, the Successor will be substituted for us in the
8
indenture, with the same effect as if it had been an original party to the indenture. As a result, the Successor may exercise our rights and powers under the indenture, and we will be released
from all our liabilities and obligations under the indenture and under the debt securities; provided, however, that we will not be relieved from the obligation to pay the principal of, premium (if any) and interest on the debt securities except in
the case of a sale of all of our assets.
Any substitution of the Successor for us might be deemed for federal income tax purposes to be
an exchange of the debt securities for new debt securities, resulting in recognition of gain or loss for such purposes and possibly certain other adverse tax consequences to beneficial owners of the debt securities. Holders should
consult their own tax advisors regarding the tax consequences of any such substitution.
As used in the indenture, person
means any individual, corporation, business trust, partnership, limited liability company, joint venture, association, joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
Events of Default
Each of the following
events are defined in the indenture as an event of default with respect to the debt securities of any series:
(1) default in
the payment of any installment of interest on any debt securities of such series for 30 days after becoming due and payable;
(2) default
in the payment of principal of or premium, if any, on any debt securities of such series when it becomes due and payable at its stated maturity, upon redemption, by declaration or otherwise;
(3) failure by us to observe or perform in any material respect any covenant or agreement in the indenture with respect to the debt securities
of such series (other than a covenant or agreement included in the indenture solely for the benefit of a series of debt securities other than such series), which continues for a period of 90 days after written notice to us by the trustee or to us
and the trustee by the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series;
(4) we
file for bankruptcy, or certain other events in bankruptcy, insolvency or reorganization occur; and
(5) any other event of default
established for the debt securities of such series set forth in the applicable prospectus supplement and supplemental indenture.
If an
event of default with respect to debt securities of any series (other than an event of default relating to certain events of bankruptcy, insolvency, or reorganization of us) occurs and is continuing, the trustee by notice to us, or the holders of at
least 25% in aggregate principal amount of the outstanding debt securities of such series by notice to us and the trustee, may, and the trustee at the request of these holders will, declare the principal of and premium, if any, and accrued and
unpaid interest on all the debt securities of such series to be due and payable. Upon such a declaration, such principal, premium and accrued and unpaid interest will be due and payable immediately. If an event of default relating to certain events
of bankruptcy, insolvency, or reorganization of us occurs and is continuing, the principal of and premium, if any, and accrued and unpaid interest on the debt securities of such series will become and be immediately due and payable without any
declaration or other act on the part of the trustee or any holders.
The holders of not less than a majority in aggregate principal amount
of the outstanding debt securities of any series may rescind a declaration of acceleration and its consequences, if we have deposited certain sums with the trustee and all events of default with respect to the debt securities of such series, other
than the non-payment of the principal or interest which have become due solely by such acceleration, have been cured or waived, as provided in the indenture.
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of
debt securities issued under the indenture.
9
We are required to furnish the trustee annually within 120 days after the end of our fiscal year
a statement regarding compliance with the indenture.
No holder of any debt securities of any series will have any right to institute any
judicial or other proceeding with respect to the indenture, or for the appointment of a receiver or trustee, or for any other remedy unless:
(1) an event of default has occurred and is continuing and such holder has given the trustee prior written notice of such continuing event of
default with respect to the debt securities of such series;
(2) the holders of not less than 25% of the aggregate principal amount of the
outstanding debt securities of such series have requested the trustee to institute proceedings in respect of such event of default;
(3)
such holders have offered the trustee indemnity or security reasonably satisfactory to it against its costs, expenses and liabilities in complying with such request;
(4) the trustee has failed to institute proceedings 60 days after the receipt of such notice, request and offer of indemnity; and
(5) no direction inconsistent with such written request has been given for 60 days by the holders of a majority in aggregate principal amount
of the outstanding debt securities of such series.
The holders of a majority in aggregate principal amount of outstanding debt securities
of a series will have the right, subject to certain limitations, to direct the time, method and place of conducting any proceeding for any remedy available to the trustee with respect to the debt securities of that series or exercising any trust or
power conferred to the trustee, and to waive certain defaults. The indenture provides that if an event of default occurs and is continuing, the trustee will exercise such of its rights and powers under the 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. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or
powers under the indenture at the request of any of the holders of the debt securities of a series unless they will have offered to the trustee security or indemnity satisfactory to the trustee against the costs, expenses and liabilities which might
be incurred by it in compliance with such request.
Notwithstanding the foregoing, the holder of any debt security will have an absolute
and unconditional right to receive payment of the principal of and premium, if any, and interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Modification and Waivers
Modification
and amendments of the indenture and the debt securities of any series may be made by us and the trustee with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of that series
affected thereby; provided, however, that no such modification or amendment may, without the consent of the holder of each outstanding debt security of that series affected thereby:
|
|
|
extend the final maturity of any debt security;
|
|
|
|
reduce the principal amount of, or premium, if any, on any debt security;
|
|
|
|
reduce the rate or extend the time of payment of interest on any debt security;
|
|
|
|
reduce any amount payable on redemption of any debt security;
|
|
|
|
change the currency in which the principal (other than as may be provided otherwise with respect to a series), premium, if any, or interest is payable on any debt security;
|
|
|
|
reduce the amount of the principal of any debt security issued with an original issue discount that is payable upon acceleration or provable in bankruptcy;
|
10
|
|
|
impair the right to institute suit for the enforcement of any payment on any debt security when due; or
|
|
|
|
reduce the principal amount of such debt securities of any series whose holders must consent to any modification of the indenture.
|
We and the trustee may, without the consent of any holders, modify or amend the terms of the indenture and the debt securities of any series
with respect to the following:
|
|
|
evidence the assumption by another corporation of our obligations, as permitted by the indenture;
|
|
|
|
add covenants for the protection of the holders of debt securities of all or any series or to surrender any right or power conferred upon us;
|
|
|
|
add any additional events of default for the benefit of holders of the debt securities of all or any series;
|
|
|
|
add one or more guarantees for the benefit of holders of the debt securities of any series;
|
|
|
|
cure or correct any ambiguity, defect, omission or inconsistency in the indenture;
|
|
|
|
provide for the issuance of additional debt securities of any series;
|
|
|
|
comply with the rules of any applicable securities depository;
|
|
|
|
provide for uncertificated debt securities in addition to or in place of certificated debt securities;
|
|
|
|
add to, change or eliminate any of the provisions of the indenture in respect of one or more series of debt securities; provided that any such addition, change or elimination (a) shall neither (1) apply to any
debt security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision nor (2) modify the rights of the holder of any such debt security with respect to such provision or
(b) shall become effective only when there is no debt security described in clause (a)(1) outstanding;
|
|
|
|
supplement any of the provisions of the indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of debt securities pursuant to the indenture; provided that any
such action shall not adversely affect the interests of the holders of debt securities of such series or any other series of debt securities in any material respect;
|
|
|
|
comply with the rules or regulations of any securities exchange or automated quotation system on which any of the debt securities may be listed or traded;
|
|
|
|
add to, change or eliminate any of the provisions of the indenture as shall be necessary or desirable in accordance with any amendments to the Trust Indenture Act of 1939, as amended;
|
|
|
|
establish the forms or terms of debt securities of any series;
|
|
|
|
evidence and provide for the acceptance of appointment by a successor trustee; and
|
|
|
|
add to, change or eliminate any other provision of the indenture; provided that such addition, change or elimination does not adversely affect the interests of the holders of debt securities of any series in any
material respect.
|
The holders of a majority in aggregate principal amount of the outstanding debt securities of any series
may, on behalf of the holders of all debt securities of that series, waive compliance by us with certain restrictive provisions of the indenture. The holders of not less than a majority in aggregate principal amount of the outstanding debt
securities of any series may, on behalf of the holders of all debt securities of that series, waive any past default and its consequences under the indenture with respect to the debt securities of that series, except a default in the payment of
principal or premium, if any, or interest on debt securities of that series. Upon any such waiver, such default will cease to exist, and any event of default arising therefrom will be deemed to have been cured, for every purpose of the indenture;
however, no such waiver will extend to any subsequent or other default or event of default or impair any rights consequent thereon.
11
Discharge, Defeasance and Covenant Defeasance
We may discharge our obligations to holders of the debt securities of a series that have not already been delivered to the trustee for
cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year). We may effect a discharge by irrevocably depositing with the trustee cash or U.S. government
obligations, as trust funds, in an amount certified to be sufficient to pay when due, whether at maturity, upon redemption or otherwise, the principal of, and premium, if any, and interest on, the debt securities and any mandatory sinking fund
payments.
The indenture provides that we may elect either (1) to defease and be discharged from any and all obligations with respect
to the debt securities of a series (except for, among other things, obligations to register the transfer or exchange of the debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or
agency with respect to the debt securities and to hold moneys for payment in trust) (legal defeasance) or (2) to be released from our obligations to comply with the restrictive covenants under the indenture, and any omission to
comply with such obligations will not constitute a default or an event of default with respect to the debt securities of a series and clauses (3) and (5) under Events of Default will no longer be applied (covenant
defeasance). Legal defeasance or covenant defeasance, as the case may be, will be conditioned upon, among other things, the irrevocable deposit by us with the trustee, in trust, of an amount in U.S. dollars, or U.S. government obligations, or
both, applicable to the debt securities of that series which through the scheduled payment of principal and interest in accordance with their terms will provide money in an amount sufficient to pay the principal or premium, if any, and interest on
the debt securities on the scheduled due dates therefor.
If we effect covenant defeasance with respect to the debt securities of any
series, the amount in U.S. dollars, or U.S. government obligations, or both, on deposit with the trustee will be sufficient, in the opinion of a nationally recognized firm of independent accountants, to pay amounts due on the debt securities of that
series at the time of the stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of acceleration. However, we would remain liable to make payment of such amounts due at the time of
acceleration.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance will not cause
the holders and beneficial owners of the debt securities of that series to recognize income, gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the U.S. Internal
Revenue Service or a change in law to that effect.
We may exercise our legal defeasance option notwithstanding our prior exercise of our
covenant defeasance option.
Same-Day Settlement and Payment
Unless otherwise provided in the applicable prospectus supplement, the debt securities will trade in the same-day funds settlement system of
DTC until maturity or until we issue the debt securities in certificated form. DTC will therefore require secondary market trading activity in the debt securities to settle in immediately available funds. We can give no assurance as to the effect,
if any, of settlement in immediately available funds on trading activity in the debt securities.
Book-Entry; Delivery and Form; Global Securities
Unless otherwise specified in the applicable prospectus supplement, the debt securities of each series will be issued in the form of
one or more global debt securities, in definitive, fully registered form without interest coupons, each of which we refer to as a global security. Each such global security will be deposited with the trustee as custodian for DTC and
registered in the name of a nominee of DTC in New York, New York for the accounts of participants in DTC.
12
Investors may hold their interests in a global security directly through DTC if they are DTC
participants, or indirectly through organizations that are DTC participants. Except in the limited circumstances described below, holders of debt securities represented by interests in a global security will not be entitled to receive their debt
securities in fully registered certificated form.
DTC has advised us as follows: DTC is a limited-purpose trust company organized under
New York Banking Law, a banking organization within the meaning of the New York Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code and a
clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC was created to hold securities of institutions that have accounts with DTC (participants) and to facilitate the clearance and
settlement of securities transactions among its participants in such securities through electronic book-entry changes in accounts of the participants, thereby eliminating the need for physical movement of securities certificates. DTCs
participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations. Indirect access to DTCs book-entry system is also available to others such as both U.S.
and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a participant, whether directly or indirectly. The rules that apply to DTC and its
participants are on file with the SEC. DTC is a wholly-owned subsidiary of The Depository Trust and Clearing Corporation (DTCC) which is owned by the users of its regulated subsidiaries.
Ownership of Beneficial Interests
Upon
the issuance of each global security, DTC will credit, on its book-entry registration and transfer system, the respective principal amount of the individual beneficial interests represented by the global security to the accounts of participants.
Ownership of beneficial interests in each global security will be limited to participants or persons that may hold interests through participants. Ownership of beneficial interests in each global security will be shown on, and the transfer of those
ownership interests will be effected only through, records maintained by DTC (with respect to participants interests) and such participants (with respect to the owners of beneficial interests in the global security other than participants).
So long as DTC or its nominee is the registered holder and owner of a global security, DTC or such nominee, as the case may be, will be
considered the sole legal owner of the debt security represented by the global security for all purposes under the indenture, the debt securities and applicable law. Except as set forth below, owners of beneficial interests in a global security will
not be entitled to receive certificated debt securities and will not be considered to be the owners or holders of any debt securities represented by the global security. We understand that under existing industry practice, in the event an owner of a
beneficial interest in a global security desires to take any actions that DTC, as the holder of the global security, is entitled to take, DTC would authorize the participants to take such action, and that participants would authorize beneficial
owners owning through such participants to take such action or would otherwise act upon the instructions of beneficial owners owning through them. No beneficial owner of an interest in a global security will be able to transfer such interest except
in accordance with DTCs applicable procedures, in addition to those provided for under the indenture. Because DTC can only act on behalf of participants, who in turn act on behalf of others, the ability of a person having a beneficial interest
in a global security to pledge that interest to persons that do not participate in the DTC system, or otherwise to take actions in respect of that interest, may be impaired by the lack of a physical certificate representing that interest.
All payments on the debt securities represented by a global security registered in the name of and held by DTC or its nominee will be made to
DTC or its nominee, as the case may be, as the registered owner and holder of the global security.
We expect that DTC or its nominee,
upon receipt of any payment of principal, premium, if any, or interest in respect of a global security, will credit participants accounts with payments in amounts proportionate to their
13
respective beneficial interests in the principal amount of the global security as shown on the records of DTC or its nominee. We also expect that payments by participants to owners of beneficial
interests in the global security held through such participants will be governed by standing instructions and customary practices as is now the case with securities held for accounts for customers registered in the names of nominees for such
customers. These payments, however, will be the responsibility of such participants and indirect participants, and neither we, the trustee nor any paying agent will have any responsibility or liability for any aspect of the records relating to, or
payments made on account of, beneficial ownership interests in any global security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests or for any other aspect of the relationship between DTC and
its participants or the relationship between such participants and the owners of beneficial interests in the global security.
Unless and
until it is exchanged in whole or in part for certificated debt securities, each global security may not be transferred except as a whole by DTC to a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC. Transfers between
participants in DTC will be effected in the ordinary way in accordance with DTC rules and will be settled in same-day funds.
We expect
that DTC will take any action permitted to be taken by a holder of debt securities only at the direction of one or more participants to whose account the DTC interests in a global security are credited and only in respect of such portion of the
aggregate principal amount of the debt securities as to which such participant or participants has or have given such direction. However, if there is an event of default under the debt securities, DTC will exchange each global security for
certificated debt securities, which it will distribute to its participants.
Although we expect that DTC will agree to the foregoing
procedures in order to facilitate transfers of interests in each global security among participants of DTC, DTC is under no obligation to perform or continue to perform such procedures, and such procedures may be discontinued at any time. None of
we, the underwriters or the trustee will have any responsibility for the performance or nonperformance by DTC or its participants or indirect participants of their respective obligations under the rules and procedures governing their operations.
The indenture provides that the global securities will be exchanged for debt securities in certificated form of like tenor and of an
equal principal amount, in authorized denominations in the following limited circumstances:
(1) DTC notifies us that it is unwilling or
unable to continue as depository or if DTC ceases to be a clearing agency registered under the Exchange Act and we do not appoint a successor depository within 90 days after we receive notice or become aware of such event;
(2) we execute and deliver to the trustee written instructions that such debt securities will be so exchangeable; or
(3) an event of default with respect to the debt securities will have occurred and be continuing.
These certificated debt securities will be registered in such name or names as DTC will instruct the trustee. It is expected that such
instructions may be based upon directions received by DTC from participants with respect to ownership of beneficial interests in global securities.
The information in this section of this prospectus concerning DTC and DTCs book-entry system has been obtained from sources that we
believe to be reliable, but we do not take responsibility for this information.
Euroclear and Clearstream
If the depositary for a global security is DTC, you may hold interests in the global security through Clearstream Banking,
société anonyme, which we refer to as Clearstream, or Euroclear Bank SA/NV, as operator of the Euroclear System, which we refer to as Euroclear, in each case, as a participant in DTC. Euroclear and Clearstream
will hold interests, in each case, on behalf of their participants through customers securities accounts in the names of Euroclear and Clearstream on the books of their respective depositaries, which in turn will hold such interests in
customers securities in the depositaries names on DTCs books.
14
Payments, deliveries, transfers, exchanges, notices and other matters relating to the debt
securities made through Euroclear or Clearstream must comply with the rules and procedures of those systems. Those systems could change their rules and procedures at any time. We have no control over those systems or their participants, and we take
no responsibility for their activities. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, would also be subject to DTCs rules and procedures.
Investors will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers, exchanges, notices and other
transactions involving any securities held through those systems only on days when those systems are open for business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United
States.
In addition, because of time-zone differences, U.S. investors who hold their interests in the debt securities through these
systems and wish on a particular day, to transfer their interests, or to receive or make a payment or delivery or exercise any other right with respect to their interests, may find that the transaction will not be effected until the next business
day in Luxembourg or Brussels, as applicable. Thus, investors who wish to exercise rights that expire on a particular day may need to act before the expiration date. In addition, investors who hold their interests through both DTC and Euroclear or
Clearstream may need to make special arrangements to finance any purchase or sales of their interests between the U.S. and European clearing systems, and those transactions may settle later than transactions within one clearing system.
No Individual Liability of Incorporators, Stockholders, Officers or Directors
The indenture provides that no past, present or future incorporator, stockholder, officer or director of us or any successor corporation in
their capacity as such shall have any individual liability for any obligation, covenant or agreement under the indenture or any debt security for a claim based thereon or otherwise in respect thereof.
Governing Law
The indenture and the debt
securities will be governed by and construed in accordance with the laws of the State of New York.
Regarding the Trustee
U.S. Bank National Association is the trustee under the indenture. We have had and may continue to have commercial banking and other service
relationships with the trustee in the ordinary course of business.
The indenture contains certain limitations on the right of the
trustee, should it become a creditor of ours, to obtain payment of claims in certain cases, or to realize for its own account on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage
in certain other transactions; however, if after an event of default has occurred and is continuing, the trustee acquires any conflicting interest it must eliminate such interest or resign.
15