DESCRIPTION OF SENIOR DEBT SECURITIES
General
The following is a summary of the general terms of the senior debt securities we may issue under an indenture (the
"indenture"), between us and The Bank of New York Mellon, as trustee. The terms of the senior debt securities include those expressly set forth in the
indenture and those made part of the indenture by referencing the Trust Indenture Act of 1939. The particular terms of the senior debt securities of any series and the extent, if any, to which such
general terms may apply to the senior debt securities of such series will be described in the prospectus supplement applicable to
the senior debt securities of such series. If there is any inconsistency between the information in this prospectus and the prospectus supplement applicable to the senior debt securities of such
series, you should rely on the information in such accompanying prospectus supplement. This description of senior debt securities provides an overview of the material provisions of the senior debt
securities and, to the extent applicable to the senior debt securities, the indenture. Since this description of senior debt securities is a summary, you should refer to the indenture for a complete
description of our obligations and the rights of a holder of senior debt securities thereunder. We have filed a copy of the indenture as an exhibit to the registration statement of which this
prospectus is a part.
When
we refer to "we," "us" or "our" in this section, we refer only to Amphenol Corporation, the issuer of the senior debt securities, and not to its subsidiaries. Unless otherwise
defined in this prospectus, capitalized terms used in this "Description of the Senior Debt Securities" section are defined under "Definitions" below.
The
senior debt securities will be our direct senior unsecured and unsubordinated indebtedness and will rank equally with all of our existing and future senior unsecured and
unsubordinated indebtedness. However, the senior debt securities are structurally subordinated to the indebtedness of our subsidiaries and effectively subordinated to any secured debt to the extent of
the value of the assets securing such indebtedness.
There
is no requirement under the indenture that future issuances of our senior debt securities be issued under the indenture, and in connection with future issuances of other senior
debt securities, we will be free to use other indentures or instruments, which may contain provisions different from those contained in the indenture or applicable to one or more series of senior debt
securities issued thereunder.
The
indenture does not limit the aggregate principal amount of senior debt securities that may be issued thereunder. The indenture provides that the senior debt securities may be issued
in one or more series. The senior debt securities may be issued at various times and may have differing maturity dates and may bear different interest rates. The prospectus supplement applicable to
the senior debt securities of any series will describe:
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the designation and aggregate principal amount of the senior debt securities of such series and their authorized denominations (if other than
$2,000 and integral multiples thereof);
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the date or dates on which the senior debt securities of such series will mature;
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the interest rate or rates, or method of calculation of such rate or rates, on the senior debt securities of such series, and the date from
which such interest shall accrue;
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the dates on which such interest will be payable or the method by which such dates are to be determined;
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the record dates for payment of such interest;
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any obligation to redeem or repurchase the senior debt securities of such series, whether pursuant to a sinking fund or analogous provision or
at our option or the option of the holder thereof;
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the period or periods within which, the price or prices at which, and the terms and conditions upon which, the senior debt securities of such
series may be redeemed or repurchased, in whole or in part;
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the inapplicability of any event of default or covenant set forth in the indenture relating to the senior debt securities, or the applicability
of any other events of default or covenant in addition to the events of default or covenants set forth in the indenture relating to the senior debt securities; or
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other specific terms applicable to the senior debt securities of such series.
Principal
of and premium, if any, and interest on the senior debt securities will be payable, and the senior debt securities may be exchanged or transferred, at our office or agency in
the Borough of Manhattan, The City of New York (which initially shall be the corporate trust office of the trustee, at 101 Barclay Street, 8th Floor West, New York, New York 10286), except
that, at our option, payment of interest may be made by check mailed to the registered holders of the senior debt securities at their registered addresses. No service charge will be made for any
registration of transfer or exchange of senior debt securities, but we or the trustee may require payment of a sum sufficient to cover any transfer tax or other similar governmental charge payable in
connection with such transfer or exchange.
Unless
otherwise indicated in the prospectus supplement applicable to the senior debt securities of any series, in any case where the date of payment of the principal of or premium, if
any, or interest on the senior debt securities of any series, including the date, if any, fixed for redemption or repurchase of the senior debt securities of such series, shall not be a "business day"
(as defined below), then payment of principal, premium or interest need not be made on that date at such place but may be made on the next succeeding business day, and no interest shall accrue for the
intervening period. A "business day" shall mean a day that is not, in New York City, a Saturday, Sunday, a legal holiday or a day on which banking institutions are authorized or obligated by law to
close.
Ranking
The senior debt securities will be senior unsecured and unsubordinated indebtedness and will rank equally with all of our existing and future
senior unsecured and unsubordinated indebtedness. However, the senior debt securities will be structurally subordinated to the indebtedness of our subsidiaries and effectively subordinated to any
secured indebtedness to the extent of the value of the assets securing such indebtedness.
Trustee
We are obligated to pay reasonable compensation to the trustee and to indemnify the trustee against certain losses, liabilities, expenses and
certain taxes incurred by the trustee in connection with its duties relating to the senior debt securities. The trustee's claims for these payments
will generally be senior to those of holders of senior debt securities in respect of all funds collected or held by the trustee.
Covenants
Unless otherwise indicated in the prospectus supplement applicable to the senior debt securities of any series and except as discussed below, we
are not restricted by the indenture from:
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incurring any type of indebtedness or other obligation;
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paying dividends or making distributions on our capital stock; or
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purchasing or redeeming our capital stock.
We
are not required under the indenture to maintain any financial ratios or specified levels of net worth or liquidity.
The
indenture contains various covenants, including, among others, the following:
So long as the senior debt securities of any series are outstanding under the indenture, neither we nor any Restricted Subsidiary will, directly
or indirectly, issue, incur, create, assume or guarantee any indebtedness secured by a mortgage, security interest, pledge, lien, charge or other encumbrance upon any Principal Property or upon any
shares of capital stock or indebtedness of any Restricted Subsidiary (a "mortgage"), whether such Principal Property, shares or indebtedness are now existing or owned or hereafter created or acquired,
unless prior to or at the same time the senior debt securities of such series are equally and ratably secured with or, at our option, prior to such secured indebtedness.
This
restriction does not apply to:
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(1)
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mortgages
on property, shares of capital stock or indebtedness or other assets of any entity existing at the time such entity becomes a Restricted Subsidiary,
provided that such mortgage was not incurred in anticipation of such entity becoming a Restricted Subsidiary;
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(2)
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mortgages
on property, shares of capital stock or indebtedness existing at the time of acquisition by us or any Restricted Subsidiary (which may include property
previously leased by us and leasehold interests on the property, provided that the lease terminates prior to or upon the acquisition), provided that such mortgage was not incurred in anticipation of
such acquisition;
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(3)
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mortgages
on property, shares of capital stock or indebtedness to secure any indebtedness incurred prior to, at the time of, or within 270 days after, the
latest of the acquisition of such property, shares of capital stock or indebtedness, or in the case of real property, the completion of construction, the completion of improvements or the beginning of
substantial commercial operation of such real property for the purpose of financing all or any part of the purchase price of such real property, the construction thereof or the making of improvements
thereto;
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(4)
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mortgages
in favor of us or another Restricted Subsidiary;
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(5)
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mortgages
existing at the time of the closing of the offering of the senior debt securities of such series;
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(6)
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mortgages
on property or other assets of any entity existing at the time such entity is merged into or consolidated with either us or any Restricted Subsidiary or at
the time of a sale, lease or other disposition of the properties of such entity as an entirety or substantially as an entirety to either us or any Restricted Subsidiary, provided that this mortgage
was not incurred in anticipation of the merger or consolidation or sale, lease or other disposition;
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(7)
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mortgages
in favor of the United States of America or any state, territory or possession thereof (or the District of Columbia) to secure partial, progress, advance
or other payments pursuant to any contract or statute or to secure any indebtedness incurred for the purpose of financing all or any part of the purchase price or cost of constructing or improving the
property subject to such mortgages;
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(8)
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mortgages
created in connection with a project financed with, and created to secure, a Nonrecourse Obligation;
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(9)
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mortgages
securing all of the senior debt securities of such series outstanding under the indenture;
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(10)
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mortgages
on accounts receivable securing our indebtedness; or
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(11)
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extensions,
renewals or replacements of any mortgage referred to in clauses (1) through (10) above without increase of the principal of the
indebtedness secured by the mortgage;
provided,
however, that any mortgages permitted by any of the clauses above shall not extend to or cover any property of ours or that of any Restricted Subsidiary, as the case may be, other than the
property specified in these clauses and improvements to this property.
Notwithstanding
the restrictions outlined in the preceding paragraphs, we and any Restricted Subsidiary are permitted to issue, incur, create, assume or guarantee indebtedness secured by
a mortgage without equally and ratably securing the senior debt securities of such series then outstanding under the indenture, if, after giving effect thereto and any concurrent retirement of
indebtedness, the aggregate amount of all indebtedness secured by mortgages (not including mortgages permitted under clauses (1) through (11) above) does not at such time exceed 15% of
Consolidated Net Tangible Assets.
Notwithstanding
the foregoing, any mortgage securing the senior debt securities granted pursuant to this covenant shall be automatically and unconditionally released and discharged upon
the release by all holders of the indebtedness secured by the mortgage giving rise to the mortgage securing the senior secured securities (including any deemed release upon payment in full of all
obligations under such indebtedness).
So long as the senior debt securities of any series are outstanding under the indenture, neither we nor any Restricted Subsidiary will enter
into any "sale/leaseback transaction" (as defined below) with respect to any Principal Property, whether now owned or hereafter acquired by us or any Restricted Subsidiary, unless:
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(a)
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we
or such Restricted Subsidiary would, at the time of entering into such arrangement, be able to incur indebtedness secured by a mortgage on the Principal Property
involved in the transaction at least equal in amount to the Attributable Debt with respect to such sale/leaseback transaction, without equally and ratably securing the senior debt securities of such
series under the covenant described in "Limitation on Liens" above; or
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(b)
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the
net proceeds of the sale of the Principal Property to be leased are at least equal to such Principal Property's fair market value, as determined by our board of
directors, and the proceeds are applied within 180 days of the effective date of the sale/leaseback transaction to the purchase, construction, development or acquisition of assets that are
Principal Property or to the repayment of senior indebtedness of us or any Restricted Subsidiary.
This
restriction does not apply to sale/leaseback transactions:
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entered into prior to the time of the closing of the offering of the senior debt securities of such series;
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between us and any Restricted Subsidiary or between Restricted Subsidiaries;
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under which the rent payable pursuant to such lease is to be reimbursed under a contract with the U.S. Government or any instrumentality or
agency thereof;
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involving leases for a period of no longer than three years; or
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in which the lease for the property or asset is entered into within 270 days after the date of acquisition, completion of construction
or commencement of full operations of such property or asset, whichever is latest.
A
"sale/leaseback transaction" means an arrangement relating to property now owned or hereafter acquired whereby either we transfer, or
any Restricted Subsidiary transfers, such property to a person and either we or any Restricted Subsidiary leases it back from such person.
Notwithstanding
the restrictions outlined in the preceding paragraphs, we and any Restricted Subsidiary will be permitted to enter into sale/leaseback transactions that would otherwise
be subject to such restrictions, without complying with the requirements of clauses (a) and (b) above, if, after giving effect thereto, the aggregate amount of all Attributable Debt with
respect to sale/leaseback transactions existing at such time that could not have been entered into except for the provisions described in this paragraph, together with the aggregate amount of all
outstanding indebtedness secured by mortgages permitted by any of clauses (1) through (11) under "Limitation on Liens" above, does not exceed 15% of Consolidated Net
Tangible Assets.
A
sale/leaseback transaction shall not be deemed to result in the creation of a mortgage.
Merger, Consolidation or Sale of Assets
We may, without the consent of the holders of any outstanding series of senior debt securities, consolidate with, sell, lease, convey or
otherwise transfer all or substantially all of our assets to, or merge with or into, any other person or entity, provided that:
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(i)
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we
shall be the continuing entity, or the successor entity formed from the consolidation or merger or the entity that received the transfer of the assets is
organized and validly existing as a corporation under the laws of any state of the United States of America, or the District of Columbia, and expressly assumes, by supplemental indenture, the due and
punctual payment of the principal of and premium, if any, and interest on the senior debt securities and the performance or observance of every covenant in the indenture on our part to be performed or
observed;
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(ii)
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immediately
after giving effect to the transaction, no default shall have occurred and be continuing with respect to the any series of senior debt securities; and
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(iii)
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an
officers' certificate and legal opinion are delivered to the trustee, each stating that the consolidation, merger, conveyance or transfer complies with the
clauses (i) and (ii) above and that all conditions precedent herein provided for relating to such transaction have been complied with.
The
successor person or entity will succeed to us, and be substituted for us, and may exercise all of our rights and powers under the indenture, but in the case of a lease of all or
substantially all of our assets, we will not be released from the obligation to pay the principal of and premium, if any, and interest on the senior debt securities.
Definitions
For purposes of this "Description of the Senior Debt Securities" section, the following terms have the following meanings:
"Attributable Debt" means, when used in connection with a sale/leaseback transaction, on any date as of which the amount of Attributable
Debt is to be determined, the product of (a) the net proceeds from the sale/leaseback transaction multiplied by (b) a fraction, the numerator of which is the number of full years of the
term of the lease relating to the property involved in the sale/leaseback transaction (without regard to any options to renew or extend such term) remaining on the date of the making of
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the
computation, and the denominator of which is the number of full years of the term of the lease measured from the first day of the term.
"Consolidated Net Tangible Assets" means the aggregate amount of assets included on our consolidated balance sheet as of the most recent
fiscal quarter end for which such consolidated balance sheet is available, minus (a) all current liabilities, except for current maturities of long-term debt and current maturities of
obligations under capital leases, and (b) total goodwill and other intangible assets, all as set forth on the most recent consolidated balance sheet of us and our consolidated subsidiaries and
computed in accordance with generally accepted accounting principles.
"default" means any event that is, or after notice or passage of time or both would be, an event of default under the indenture.
"indebtedness" means, with respect to any person, obligations (other than Nonrecourse Obligations) of such person for borrowed money or
evidenced by bonds, debentures, notes or similar instruments.
"Nonrecourse Obligation" means indebtedness or other obligations substantially related to (a) the acquisition of assets not
previously owned by us or any Restricted Subsidiary or (b) the financing of a project involving the development or expansion of our properties or those of any Restricted Subsidiary, as to which
the obligee with respect to such indebtedness or obligation has no recourse to us or any Restricted Subsidiary or any of our assets or those of any Restricted Subsidiary other than the assets that
were acquired with the proceeds of such transaction or the project financed with the proceeds of such transaction (and the proceeds thereof).
"person" means any individual, corporation, partnership, limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or government or political subdivision thereof.
"Principal Property" means the land, land improvements, buildings (to the extent they constitute real property interests and including any
leasehold interest therein) and fixtures (including, for the avoidance of doubt, all machinery and equipment) constituting the principal corporate office, any manufacturing plant or any manufacturing
facility (whether now owned or hereafter acquired) that:
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is owned by us or any of our subsidiaries;
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is located within any of the present 50 states of the United States of America (or the District of Columbia); and
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has not been determined in good faith by our board of directors not to be materially important to the total business conducted by us and our
subsidiaries taken as a whole.
"Restricted Subsidiary" means any of our direct or indirect subsidiaries that owns any Principal Property; provided, however, that the
term "Restricted Subsidiary" does not include:
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any such subsidiary that is principally engaged in leasing or in financing receivables or that is principally engaged in financing outside the
United States of America our operations or those of our subsidiaries; or
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any such subsidiary less than 80% of the Voting Stock of which is owned, directly or indirectly, by us, by one or more of our other
subsidiaries or by us and one or more of our other subsidiaries if the common stock of such subsidiary is traded on any national securities exchange or in the over-the-counter market.
"Voting Stock" of a person means all classes of any and all shares, interests, rights to purchase, warrants, options, participation or
other equivalents of or interests in (however designated) equity of such person, including any preferred stock and limited liability or partnership interests (whether general or limited), but
excluding any debt securities convertible into such equity, to the extent then
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outstanding
and normally entitled to vote in the election of such person's directors, managers or trustees, as applicable.
Defaults
Unless otherwise indicated in the prospectus supplement applicable to the senior debt securities of any series, each of the following is an
"event of default" with respect to the senior debt securities of such series under the indenture:
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(1)
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a
default in the payment of any interest on any debt security of such series when it becomes due and payable, and the continuance of such default for a period of
30 days;
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(2)
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a
default in the payment of principal of or premium, if any, on any debt security of such series when due at its maturity, including at the stated maturity, upon
redemption or required repurchase, upon declaration of acceleration or otherwise;
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(3)
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a
failure by us to comply with our other convenants or warranties contained in the indenture (other than any such covenant or warranty for which the consequences of
nonperformance or breach are addressed elsewhere in this paragraph and other than a covenant or warranty that is solely for the benefit of debt securities other than such series) continuing for
90 days after written notice has been given as provided in the indenture;
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(4)
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(a)
a failure to make any payment at maturity, including any applicable grace period, on any of our indebtedness in an amount in excess of $50,000,000 or
(b) a default on any of our indebtedness, which default results in the acceleration of indebtedness in an amount in excess of $50,000,000; or
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(5)
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the
occurrence of various events of bankruptcy, insolvency or reorganization involving us as provided in the indenture.
The
foregoing constitute events of default whatever the reason for any such event of default and whether it is voluntary or involuntary or is effected by operation of any law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
If
an event of default with respect to the senior debt securities of any series, other than an event of default described in clause (5) above, occurs and is continuing, then the
trustee or the holders of at least 25% in aggregate principal amount of the outstanding senior debt securities of such series by notice to us may declare the principal of and accrued but unpaid
interest on all the senior debt securities of such series to be due and payable. Upon this declaration, principal of and interest on the senior debt securities of such series will be immediately due
and payable. If an event of default described in clause (5) above occurs and is continuing, the principal of and accrued but unpaid interest on all the senior debt securities of such series
will become immediately due and payable without any
declaration or other act on the part of the trustee or any holders. Under some circumstances, the holders of a majority in aggregate principal amount of the outstanding senior debt securities of such
series may rescind any acceleration with respect to the senior debt securities of such series and its consequences.
If
an event of default occurs and is continuing, the trustee, in conformity with its duties under the indenture, will be required to exercise all rights or powers under the indenture at
the request or direction of any of the holders, provided the holders provide the trustee with a security or indemnity against the costs, expenses and liabilities that might be incurred by it in
compliance with such request or direction. Except to enforce the right to receive payment of principal, premium, if any, or interest
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when
due, no holder of senior debt securities of any series may pursue any remedy with respect to the indenture or the senior debt securities unless:
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such holder previously notified the trustee that an event of default is continuing;
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the holders of at least 25% in aggregate principal amount of the outstanding senior debt securities of such series requested the trustee to
pursue the remedy;
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such holders offered the trustee reasonable security or indemnity against the costs, expenses and liabilities that may be incurred by it in
compliance with such request;
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the trustee has not complied with the holder's request within 60 days after its receipt of such notice, request and offer of security or
indemnity; and
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the holders of a majority in principal amount of the outstanding senior debt securities of such series have not given the trustee a direction
inconsistent with the request within the 60-day period.
Generally,
the holders of a majority in principal amount of the outstanding senior debt securities of a series are given the right to direct the time, method and place of conducting any
proceeding for any remedy available to the trustee or of exercising any trust or power conferred on the trustee with respect to the senior debt securities of such series. The trustee, however, may
refuse to follow any direction that conflicts with law or the indenture or that the trustee determines is unduly prejudicial to the rights of any other holder of senior debt securities of such series
or that would expose the trustee to personal liability.
If
a default or event of default with respect to the senior debt securities of a series occurs and is continuing and a responsible officer of the trustee has notice thereof, the trustee
must mail to each holder of any debt security of such series notice of the default or event of default within 90 days after it occurs, or if later, after a responsible officer of the trustee
has notice of such default or event of default. Except in the case of a default or event of default in the payment of principal, premium, if any, or interest on any debt security of such series, the
trustee may withhold notice if the trustee determines in good faith that withholding notice is in the interests of the holders.
In
addition, we are required, so long as any of the senior debt securities are outstanding, deliver to the trustee, within 120 days after the end of each fiscal year, an officers'
certificate stating whether or not, to the knowledge of the signers thereof, we are in default in the performance and observance of any of the terms, provisions and conditions of the indenture
(without regard to any period of grace or requirement of notice provided hereunder), and if a default or event of default shall have occurred, specifying all such defaults or events of default and the
nature and status thereof of which we may have knowledge. We also are required, so long as any of the senior debt securities are outstanding, to deliver to the trustee, within 30 days after
becoming aware of any default or event of default, an officers' certificate specifying such default or event of default and what action we are taking or propose to take with respect thereto.
Amendments and Waivers
We and the trustee may amend the indenture as to the senior debt securities of any series with the consent of the holders of a majority in
principal amount of the senior debt securities of such series then outstanding. Any past default or compliance with any provisions of the
indenture or the senior debt securities of such series may be waived with the consent of the holders of a majority in principal amount of the senior debt securities of such series then outstanding.
These consents may be obtained through a tender offer or exchange offer for the senior debt securities of such series.
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Without
the consent of each holder of an outstanding debt security of any series, we and the trustee may not amend the indenture as to such series
to:
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reduce the amount of senior debt securities of such series whose holders must consent to an amendment, supplement or waiver;
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reduce the rate of or extend the time for payment of interest (including default interest) on any debt security of such series;
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reduce the principal of or premium, if any, on any debt security of such series or change its maturity, including the stated maturity or the
date of redemption or required repurchase thereof;
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reduce the principal amount of discount securities payable upon acceleration of the maturity thereof;
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make any debt security of such series payable in any currency other than that stated in the debt security of such series;
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impair the right of any holder of any debt security of such series to receive payment of principal of and interest on the senior debt
securities of such series on or after the due dates for the payment of the principal or interest or to institute suit for the enforcement of any payment on or with respect to the senior debt
securities of such series;
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make any changes that would affect the ranking of the senior debt securities of such series in a manner adverse to the holders thereof;
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make any change in the amendment or waiver provisions relating to the senior debt securities of such series that require the consent of each
holder thereof; or
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make any change in Sections 6.8 or 6.13 of the indenture relating to the right of holders to receive payment of principal and interest
and the waiver past defaults.
We
and the trustee may, however, amend or supplement the indenture without the consent of any holder of the senior debt securities of any series as
to:
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cure, correct or supplement any ambiguity, omission, defect or inconsistency as to the senior debt securities of such series;
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comply with Article V of the indenture, including the assumption by a successor entity of our obligations under the indenture as to the
senior debt securities of such series;
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provide for uncertificated senior debt securities in addition to or in place of certificated senior debt securities;
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add guarantees or collateral security with respect to the senior debt securities of such series;
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add to our covenants under the indenture for the benefit of the holders of the senior debt securities of such series or to surrender any right
or power conferred upon us as to the senior debt securities of such series;
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make any change that does not adversely affect the rights of any holder of senior debt securities of such series in any material respect;
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provide for the issuance of and establish the form and terms and conditions of securities of any series as permitted by the indenture;
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change or eliminate any of the provisions of the indenture provided that any such change or elimination will become effective only when there
is no security outstanding of any series created
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It
is not necessary that any consent of the holders of the senior debt securities of any series required under the indenture approve the particular form of any proposed amendment. It is
sufficient if such consent approves the substance of the proposed amendment.
Transfer and Exchange
A holder may transfer or exchange senior debt securities of a series in accordance with the indenture. Upon any transfer or exchange, the
registrar of the senior debt securities and the trustee may require a holder to furnish appropriate endorsements and transfer documents and we may require a holder to pay any taxes required by law or
permitted by the indenture, including any transfer tax or other similar governmental charge payable as part of the transfer or exchange. We are not required to transfer or exchange any debt security
selected for redemption or to transfer or exchange any debt security for a period of 15 days prior to a selection of senior debt securities to be redeemed. The senior debt securities will be
issued in registered form and the registered holder of a debt security will be treated as the owner of the debt security for all purposes.
Defeasance
With respect to the senior debt securities of any series, we may, at any time, terminate all of our obligations under the senior debt securities
of such series and the indenture ("legal defeasance"), except for certain obligations, including those respecting the defeasance trust and obligations
to register the transfer or exchange of the senior debt securities of such securities, to
replace mutilated, destroyed, lost or stolen senior debt securities of such series and to maintain a registrar and paying agent in respect of the senior debt securities of such series. We at any time
may terminate our obligations with respect to the senior debt securities of any series under the covenants described under "Covenants" and certain other covenants set forth in the
indenture, as well as any additional covenants which may be set forth in the prospectus supplement applicable to the senior debt securities of any series ("covenant
defeasance").
We
may exercise our legal defeasance option notwithstanding our prior exercise of our covenant defeasance option. If we exercise our legal defeasance option, payment of the senior debt
securities of any series may not be accelerated because of an event of default with respect thereto. If we exercise our covenant defeasance option, payment of the senior debt securities of such series
may not be accelerated because of an event of default described in clause (3) (except for the covenant described under "CovenantsMerger, Consolidation or Sale of
Assets") or clause (4) under "Defaults" above.
To
exercise either defeasance option with respect to the senior debt securities of any series:
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we must irrevocably deposit with the trustee, in trust for the benefit of the holders of the senior debt securities of such series, money or
U.S. government obligations that will provide cash at the times and in the amounts as will be sufficient to pay principal, premium and interest when due on all the senior debt securities of such
series to maturity or redemption;
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we must deliver to the trustee an opinion of counsel that will provide that the holders of the senior debt securities of such series will not
recognize income, gain or loss for U.S. federal income tax purposes as a result of the deposit and defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner
and at the same times as would have been the case if the deposit and defeasance had not occurred;
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in the case of legal defeasance only, the opinion of counsel referred to in the clause above must be based on a ruling of the U.S. Internal
Revenue Service or other change in applicable U.S. federal income tax law;
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we must deliver to the trustee an officers' certificate and an opinion of counsel each stating that all conditions precedent to exercising
either defeasance option have been complied with;
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such legal defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, any material
agreement or instrument to which we are a party or by which we are bound; and
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no default shall have occurred and be continuing.
Concerning the Trustee
The Bank of New York Mellon is the trustee under the indenture and is also registrar and paying agent of the senior debt securities.
The
indenture contains limitations on the rights of the trustee, should it become our creditor, to obtain payment of claims in some cases, or to realize on property received in respect
of any of these claims as security or otherwise. The trustee is permitted to engage in other transactions with us and our subsidiaries and affiliates. However, if the trustee acquires any conflicting
interest it must either eliminate its conflict within 90 days, apply to the SEC for permission to continue or resign as trustee under the indenture.
Governing Law
The indenture provides that it and the senior debt securities will be governed by, and construed in accordance with, the laws of the State of
New York.
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GLOBAL SECURITIES
Book-Entry, Delivery and Form
Unless we indicate differently in any applicable prospectus supplement or free writing prospectus, the senior debt securities initially will be
issued in book-entry form and represented by one or more global notes or global securities, or, collectively, global securities. The global securities will be deposited with, or on behalf of, The
Depository Trust Company, New York, New York, as depositary, or DTC, and registered in the name of Cede & Co., the nominee of DTC. Unless and until it
is exchanged for individual certificates evidencing securities under the limited circumstances described below, a global security may not be transferred except as a whole by the depositary to its
nominee or by the nominee to the depositary, or by the depositary or its nominee to a successor depositary or to a nominee of the successor depositary.
DTC
has advised us that it is:
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a limited-purpose trust company organized under the New York Banking Law;
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a "banking organization" within the meaning of the New York Banking Law;
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a member of the Federal Reserve System;
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a "clearing corporation" within the meaning of the New York Uniform Commercial Code; and
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a "clearing agency" registered pursuant to the provisions of Section 17A of the Exchange Act.
DTC
holds securities that its participants deposit with DTC. DTC also facilitates the settlement among its participants of securities transactions, such as transfers and pledges, in
deposited securities through electronic computerized book-entry changes in participants' accounts, thereby eliminating the need for physical movement of securities certificates. "Direct participants"
in DTC include securities brokers and dealers, including underwriters, banks, trust companies, clearing corporations and other organizations. DTC is a wholly-owned subsidiary of The Depository
Trust & Clearing Corporation, or DTCC. DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing
agencies. DTCC is owned by the users of its regulated
subsidiaries. Access to the DTC system is also available to others, which we sometimes refer to as indirect participants, that clear through or maintain a custodial relationship with a direct
participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Purchases
of securities under the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC's records. The ownership interest of
the actual purchaser of a security, which we sometimes refer to as a beneficial owner, is in turn recorded on the direct and indirect participants' records. Beneficial owners of securities will not
receive written confirmation from DTC of their purchases. However, beneficial owners are expected to receive written confirmations providing details of their transactions, as well as periodic
statements of their holdings, from the direct or indirect participants through which they purchased securities. Transfers of ownership interests in global securities are to be accomplished by entries
made on the books of participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the global securities, except under
the limited circumstances described below.
To
facilitate subsequent transfers, all global securities deposited by direct participants with DTC will be registered in the name of DTC's partnership nominee, Cede & Co.,
or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee
will not change the beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities. DTC's records reflect only the identity of the direct participants
to whose accounts the securities are credited,
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which
may or may not be the beneficial owners. The participants are responsible for keeping account of their holdings on behalf of their customers.
So
long as the securities are in book-entry form, you will receive payments and may transfer securities only through the facilities of the depositary and its direct and indirect
participants. We will maintain an office or agency in the location specified in the prospectus supplement for the applicable securities, where notices and demands in respect of the securities and the
indenture may be delivered to us and where certificated securities may be surrendered for payment, registration of transfer or exchange.
Conveyance
of notices and other communications by DTC to direct participants, by direct participants to indirect participants and by direct participants and indirect participants to
beneficial owners will be governed by arrangements among them, subject to any legal requirements in effect from time to time.
Redemption
notices will be sent to DTC. If less than all of the securities of a particular series are being redeemed, DTC's practice is to determine by lot the amount of the interest of
each direct participant in the securities of such series to be redeemed.
Neither
DTC nor Cede & Co. (or such other DTC nominee) will consent or vote with respect to the securities. Under its usual procedures, DTC will mail an omnibus proxy to us
as soon as possible after the record date. The omnibus proxy assigns the consenting or voting rights of Cede & Co. to those direct participants to whose accounts the securities of such
series are credited on the record date, identified in a listing attached to the omnibus proxy.
So
long as securities are in book-entry form, we will make payments on those securities to the depositary or its nominee, as the registered owner of such securities, by wire transfer of
immediately available funds. If securities are issued in definitive certificated form under the limited circumstances described below and unless if otherwise provided in the description of the
applicable securities herein or in the applicable prospectus supplement, we will have the option of making payments by check mailed to the addresses of the persons entitled to payment or by wire
transfer to bank accounts in the United States designated in writing to the applicable trustee or other designated party at least 15 days before the applicable payment date by the persons
entitled to payment, unless a shorter period is satisfactory to the applicable trustee or other designated party.
Redemption
proceeds, distributions and dividend payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized
representative of DTC. DTC's practice is to credit direct participants' accounts upon DTC's receipt of funds and corresponding detail information from us on the payment date in accordance with their
respective holdings shown on DTC records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the
account of customers in bearer form or registered in "street name." Those payments will be the responsibility of participants and not of DTC or us, subject to any statutory or regulatory requirements
in effect from time to time. Payment of redemption proceeds, distributions and dividend payments to Cede & Co., or such other nominee as may be requested by an authorized representative
of DTC, is our responsibility, disbursement of payments to direct participants is the responsibility of DTC, and disbursement of payments to the beneficial owners is the responsibility of direct and
indirect participants.
Except
under the limited circumstances described below, purchasers of securities will not be entitled to have securities registered in their names and will not receive physical delivery
of securities. Accordingly, each beneficial owner must rely on the procedures of DTC and its participants to exercise any rights under the securities and the indenture.
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The
laws of some jurisdictions may require that some purchasers of securities take physical delivery of securities in definitive form. Those laws may impair the ability to transfer or
pledge beneficial interests in securities.
DTC
may discontinue providing its services as securities depositary with respect to the securities at any time by giving reasonable notice to us. Under such circumstances, in the event
that a successor depositary is not obtained, securities certificates are required to be printed and delivered.
As
noted above, beneficial owners of a particular series of securities generally will not receive certificates representing their ownership interests in those securities. However,
if:
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DTC notifies us that it is unwilling or unable to continue as a depositary for the global security or securities representing such series of
securities or if DTC ceases to be a clearing agency registered under the Exchange Act at a time when it is required to be registered and a successor depositary is not appointed within 90 days
of the notification to us or of our becoming aware of DTC's ceasing to be so registered, as the case may be;
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we determine, in our sole discretion, not to have such securities represented by one or more global securities; or
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an Event of Default has occurred and is continuing with respect to such series of securities,
we
will prepare and deliver certificates for such securities in exchange for beneficial interests in the global securities. Any beneficial interest in a global security that is exchangeable under the
circumstances described in the preceding sentence will be exchangeable for securities in definitive certificated form registered in the names that the depositary directs. It is expected that these
directions will be based upon directions received by the depositary from its participants with respect to ownership of beneficial interests in the global securities.
If so provided in the applicable prospectus supplement, you may hold interests in a global security through Clearstream Banking S.A.,
which we refer to as "Clearstream," or Euroclear Bank S.A./N.V., as operator of the Euroclear System, which we refer to as "Euroclear," either directly if you are a participant in Clearstream
or Euroclear or indirectly through organizations which are participants in Clearstream or Euroclear. Clearstream and Euroclear will hold interests on behalf of their respective participants through
customers' securities accounts in the names of Clearstream and Euroclear, respectively, on the books of their respective U.S. depositaries, which in turn will hold such interests in customers'
securities accounts in such depositaries' names on DTC's books.
Clearstream
and Euroclear are securities clearance systems in Europe. Clearstream and Euroclear hold securities for their respective participating organizations and facilitate the
clearance and settlement of securities transactions between those participants through electronic book-entry changes in their accounts, thereby eliminating the need for physical movement of
certificates.
Payments,
deliveries, transfers, exchanges, notices and other matters relating to beneficial interests in global securities owned through Euroclear or Clearstream must comply with the
rules and procedures of those systems. Transactions between participants in Euroclear or Clearstream, on one hand, and other participants in DTC, on the other hand, are also subject to DTC's rules and
procedures.
Investors
will be able to make and receive through Euroclear and Clearstream payments, deliveries, transfers and other transactions involving any beneficial interests in global
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.
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Cross-market
transfers between participants in DTC, on the one hand, and participants in Euroclear or Clearstream, on the other hand, will be effected through DTC in accordance with the
DTC's rules on behalf of Euroclear or Clearstream, as the case may be, by their respective U.S. depositaries; however, such cross-market transactions will require delivery of instructions to Euroclear
or Clearstream, as the case may be, by the counterparty in such system in accordance with the rules and procedures and within the established deadlines (European time) of such system. Euroclear or
Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by
delivering or receiving interests in
the global securities through DTC, and making or receiving payment in accordance with normal procedures for same-day fund settlement. Participants in Euroclear or Clearstream may not deliver
instructions directly to their respective U.S. depositaries.
Due
to time zone differences, the securities accounts of a participant in Euroclear or Clearstream purchasing an interest in a global security from a direct participant in DTC will be
credited, and any such crediting will be reported to the relevant participant in Euroclear or Clearstream, during the securities settlement processing day (which must be a business day for Euroclear
or Clearstream) immediately following the settlement date of DTC. Cash received in Euroclear or Clearstream as a result of sales of interests in a global security by or through a participant in
Euroclear or Clearstream to a direct participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of
the business day for Euroclear or Clearstream following DTC's settlement date.
The information in this section of this prospectus concerning DTC, Clearstream, Euroclear and their respective book-entry systems has been
obtained from sources that we believe to be reliable, but we do not take responsibility for this information. This information has been provided solely as a matter of convenience. The rules and
procedures of DTC, Clearstream and Euroclear are solely within the control of those organizations and could change at any time. Neither we nor the trustee nor any agent of ours or of the trustee has
any control over those entities and none of us takes any responsibility for their activities. You are urged to contact DTC, Clearstream and Euroclear or their respective participants directly to
discuss those matters. In addition, although we expect that DTC, Clearstream and Euroclear will perform the foregoing procedures, none of them is under any obligation to perform or continue to perform
such procedures and such procedures may be discontinued at any time. Neither we nor any agent of ours will have any responsibility for the performance or nonperformance by DTC, Clearstream and
Euroclear or their respective participants of these or any other rules or procedures governing their respective operations.
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