As filed with the U.S. Securities and Exchange Commission on December 4, 2015
1933 Act File No. 333-205540
1940 Act File No. 811-22974
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM N-2
x REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
o Pre-Effective Amendment No.
x Post-Effective Amendment No. 1
and
x REGISTRATION STATEMENT UNDER THE INVESTMENT COMPANY ACT OF 1940
x Amendment No. 16
EAGLE POINT CREDIT COMPANY INC.
(Exact name of Registrant as specified in charter)
20 Horseneck Lane
Greenwich, CT 06830
(Address of Principal Executive Offices)
(203) 340-8500
(Registrants telephone number, including Area Code)
Thomas P. Majewski
20 Horseneck Lane
Greenwich, CT 06830
(Name and address of agent for service)
Copies of Communications to:
Thomas J. Friedmann
Dechert LLP
One International Place, 40th Floor
100 Oliver Street
Boston, Massachusetts 02110
(617) 728-7120
Approximate date of proposed public offering: As soon as practicable after the effective date of this Registration Statement.
If any securities being registered on this form will be offered on a delayed or continuous basis in reliance on Rule 415 under the Securities Act of 1933, other than securities offered in connection with a dividend reinvestment plan, check the following box. x
It is proposed that this filing will become effective (check appropriate box):
o when declared effective pursuant to section 8(c).
If appropriate, check the following box:
|
o |
This post-effective amendment designates a new effective date for a previously filed registration statement. |
|
o |
This form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act and the Securities Act registration statement number of the earlier effective registration statement for the same offering is _______________. |
EXPLANATORY NOTE
This Post-Effective Amendment No. 1 to the Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) (the Registration Statement) of Eagle Point Credit Company Inc. (the Registrant) is being filed pursuant to Rule 462(d) under the Securities Act of 1933, as amended (the Securities Act), solely for the purpose of adding exhibits to the Registration Statement. Accordingly, this Post-Effective Amendment No. 1 consists only of a facing page, this explanatory note and Part C of the Registration Statement. This Post-Effective Amendment No. 1 does not modify any other part of the
Registration Statement. Pursuant to Rule 462(d) under the Securities Act, this Post-Effective Amendment No. 1 shall become effective immediately upon filing with the Securities and Exchange Commission. The contents of the Registration Statement are hereby incorporated by reference.
PART C OTHER INFORMATION
ITEM 25. FINANCIAL STATEMENTS AND EXHIBITS
1. Financial Statements:
The Index to Financial Statements on page F-1 of this Registration Statement is hereby incorporated by reference.
2. Exhibits:
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![](http://www.sec.gov/Archives/edgar/data/1604174/000114420415069373/spacer.gif) |
(a)(1) |
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Form of Certification of Incorporation(3) |
(a)(2) |
|
Certificate of Designation for the 7.75% Series A Term Preferred Stock due 2022(5) |
(b) |
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Amended and Restated Bylaws(4) |
(c) |
|
Not applicable |
(d)(1) |
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Indenture, dated December 4, 2015 by and between the Registrant and American Stock Transfer & Trust Company, LLC, trustee |
(d)(2) |
|
Form of Certificate of Designation for Preferred Stock(7) |
(d)(3) |
|
Form of Subscription Certificate(7) |
(d)(4) |
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Form T-1 Statement of Eligibility of American Stock Transfer & Trust Company, LLC, as trustee, with respect to the Indenture(6) |
(d)(5) |
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Form of Subscription Agent Agreement(7) |
(d)(6) |
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First Supplemental Indenture, dated December 4, 2015 by and between the Registrant and American Stock Transfer & Trust Company, LLC, trustee |
(e) |
|
Dividend Reinvestment Plan(3) |
(f) |
|
Not applicable |
(g) |
|
Form of Investment Advisory Agreement by and between the Registrant and Eagle Point Credit Management LLC(1) |
(h)(1) |
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Form of Underwriting Agreement for Equity Securities(7) |
(h)(2) |
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Form of Underwriting Agreement for Debt Securities(7) |
(h)(3) |
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Underwriting Agreement, dated December 1, 2015 by and among the Registrant, Eagle Point Credit Management LLC, Eagle Point Administration LLC and Incapital LLC |
(i) |
|
Not applicable |
(j) |
|
Form of Custodian Agreement(1) |
(k)(1) |
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Form of Administration Agreement by and between the Registrant and Eagle Point Administration LLC(1) |
(k)(2) |
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Form of License Agreement between the Registrant and Eagle Point Credit Management LLC(2) |
(k)(3) |
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Form of Transfer Agency and Registrar Services Agreement between the Registrant and American Stock Transfer & Trust Company, LLC(3) |
(k)(4) |
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Services Agreement, dated November 1, 2014 by and among SS&C Technologies, Inc., the Registrant, Eagle Point Administration LLC and Eagle Point Credit Management LLC(5) |
(l)(1) |
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Opinion and Consent of Counsel(7) |
(l)(2) |
|
Opinion and Consent of Counsel |
(m) |
|
Not applicable |
(n) |
|
Consent of Independent Registered Public Accounting Firm(8) |
(o) |
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Not applicable |
(p) |
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Not applicable |
(q) |
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Not applicable |
(r)(1) |
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Code of Ethics of the Registrant(2) |
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(r)(2) |
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Code of Ethics of Eagle Point Credit Management LLC(7) |
(s)(1) |
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Form of Prospectus Supplement for Common Stock Offerings(7) |
(s)(2) |
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Form of Prospectus Supplement for Preferred Stock Offerings(8) |
(s)(3) |
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Form of Prospectus Supplement for Subscription Rights Offerings(7) |
(s)(4) |
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Form of Prospectus Supplement for Debt Securities(8) |
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(1) |
Previously filed on June 6, 2014 with the Registrants Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein. |
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(2) |
Previously filed on July 7, 2014 with Pre-effective Amendment No. 1 to the Registrants Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein. |
|
(3) |
Previously filed on September 30, 2014 with Pre-effective Amendment No. 4 to the Registrants Registration Statement on Form N-2 (File Nos. 333-196590 and 811-22974) and incorporated by reference herein. |
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(4) |
Previously filed on March 20, 2015 with the Registrants Registration Statement on Form N-2 (File Nos. 333-202914 and 811-22974) and incorporated by reference herein. |
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(5) |
Previously filed on May 12, 2015 with Pre-effective Amendment No. 2 to the Registrants Registration Statement on Form N-2 (File Nos. 333-202914 and 811-22974) and incorporated by reference herein. |
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(6) |
Previously filed on August 11, 2015 with Pre-effective Amendment No. 2 to the Registrants Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein. |
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(7) |
Previously filed on November 5, 2015 with Pre-effective Amendment No. 4 to the Registrants Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein. |
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(8) |
Previously filed on November 23, 2015 with Pre-effective Amendment No. 5 to the Registrants Registration Statement on Form N-2 (File Nos. 333-205540 and 811-22974) and incorporated by reference herein. |
ITEM 26. MARKETING ARRANGEMENTS
The information contained under the heading Plan of Distribution in the prospectus that forms a part of this Registration Statement is incorporated herein by reference.
ITEM 27. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
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SEC registration fee |
|
$ |
30,210 |
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FINRA filing fee |
|
$ |
45,500 |
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NYSE listing fee |
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$ |
60,000 |
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Rating agency fees |
|
$ |
50,000 |
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Printing and postage |
|
$ |
175,000 |
|
Legal fees and expenses |
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$ |
750,000 |
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Accounting fees and expenses |
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$ |
200,000 |
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Miscellaneous |
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$ |
50,000 |
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Total |
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$ |
1,360,710 |
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Note: Except for the SEC registration fee and the FINRA filing fee and the rating agency fee, all listed amounts are estimates.
ITEM 28. PERSONS CONTROLLED BY OR UNDER COMMON CONTROL
Eagle Point Credit Company Sub LLC, a Delaware limited liability company, is a wholly owned subsidiary of the Registrant and was included in the Registrants consolidated financial statements as of December 31, 2014 and June 30, 2015.
Eagle Point Credit Company Sub (Cayman) Ltd., a Cayman Islands exempted company, is a wholly owned subsidiary of the Registrant and was included in the Registrants consolidated financial statements as of June 30, 2015.
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ITEM 29. NUMBER OF HOLDERS OF SECURITIES
The following table sets forth the number of record holders of each class of the Registrants securities as of October 29, 2015:
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Title of Class |
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Number of Record Holders |
Common stock, par value $0.001 per share |
|
|
8 |
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Preferred stock, par value $0.001 per share |
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|
1 |
|
ITEM 30. INDEMNIFICATION
Directors and Officers
As permitted by Section 102 of the General Corporation Law of the State of Delaware (the DGCL), the Registrant has adopted provisions in its certificate of incorporation, as amended, that limit or eliminate the personal liability of its directors for a breach of their fiduciary duty of care as a director. The duty of care generally requires that, when acting on behalf of the corporation, directors exercise an informed business judgment based on all material information reasonably available to them. Consequently, a director will not be personally liable to the Registrant or its stockholders for monetary damages or
breach of fiduciary duty as a director, except for liability for: any breach of the directors duty of loyalty to the Registrant or its stockholders; any act or omission not in good faith or that involves intentional misconduct or a knowing violation of law; any act related to unlawful stock repurchases, redemptions or other distributions or payment of dividends; or any transaction from which the director derived an improper personal benefit. These limitations of liability do not affect the availability of equitable remedies such as injunctive relief or rescission.
The Registrants certificate of incorporation and bylaws provide that all directors, officers, employees and agents of the Registrant shall be entitled to be indemnified by the Registrant to the fullest extent permitted by the DGCL, subject to the requirements of the Investment Company Act of 1940, as amended (the 1940 Act). Under Section 145 of the DGCL, the Registrant is permitted to offer indemnification to its directors, officers, employees and agents.
Section 145(a) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise. Such indemnity may be against expenses (including attorneys
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding, if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and if, with respect to any criminal action or proceeding, the person did not have reasonable cause to believe the persons conduct was unlawful.
Section 145(b) of the DGCL provides, in general, that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor because the person is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise, against any expenses (including attorneys fees) actually and reasonably incurred by the person in connection with the
defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
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Section 145(g) of the DGCL provides, in general, that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of any other enterprise, against any liability asserted against the person in any such capacity, or arising out of the persons status as such, regardless of whether the corporation would have the power to indemnify the person against such liability under the provisions of the law. We have obtained liability
insurance for the benefit of our directors and officers.
Adviser and Administrator
The Investment Advisory Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Eagle Point Credit Management LLC (the Adviser) and its officers, managers, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages, liabilities, costs and expenses (including reasonable attorneys fees and amounts reasonably paid in settlement) arising from the rendering of the Advisers
services under the Investment Advisory Agreement or otherwise as an investment adviser of the Registrant.
The Administration Agreement provides that, absent willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of the reckless disregard of its duties and obligations, Eagle Point Administration LLC (the Administrator) and its officers, managers, agents, employees, controlling persons, members and any other person or entity affiliated with it are entitled to indemnification from the Registrant for any damages, liabilities, costs and expenses (including reasonable attorneys fees and amounts reasonably paid in settlement) arising from the rendering of the
Administrators services under the Administration Agreement or otherwise as administrator for the Registrant.
Insofar as indemnification for liability arising under the Securities Act of 1933, as amended (the Securities Act), may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that, in the opinion of the U.S. Securities and Exchange Commission, such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
Each Underwriting Agreement provides that the underwriter agrees to indemnify, defend and hold harmless each of the Registrant, the Adviser and the Administrator, and each of their respective partners, directors, trustees, managers, members and shareholders (as the case may be), and each officer of the Registrant who signs the Registration Statement and each person, if any, who controls the Registrant, the Adviser and/or the Administrator within the meaning of either Section 15 of the Securities Act or Section 20 of the Securities Exchange Act of 1934, as amended (the Exchange Act), from and against any loss,
damage, expense, liability or claim (including the reasonable cost of investigation) which, jointly or severally, the Registrant or any such person may incur under the Securities Act, the Exchange Act, the 1940 Act, the common law or otherwise, insofar as such loss, damage, expense, liability or claim arises out of or is based upon any untrue statement or alleged untrue statement of a material fact contained in and in conformity with information concerning such sales agent furnished in writing by such sales agent to the Registrant expressly for use in this Registration Statement (or in the Registration Statement as amended by any post-effective amendment hereof by the Registrant) or in the prospectus (or any supplement thereto) contained in this Registration Statement, or arises out of or is based upon any omission or alleged omission to state a material fact in connection with such information required to be stated in this Registration Statement or such prospectus (or supplement
thereto) or necessary to make such information not misleading.
The Registrant has entered into indemnification agreements with its officers and directors. The indemnification agreements are intended to provide the Registrants officers and directors the maximum
C-4
indemnification permitted under Delaware law and the 1940 Act. Each indemnification agreement provides that the Registrant shall indemnify the director who is a party to the agreement (an Indemnitee), including the advancement of legal expenses, if, by reason of his or her corporate status, the Indemnitee is, or is threatened to be, made a party to or a witness in any threatened, pending, or completed proceeding, other than a proceeding by or in the right of the Registrant.
ITEM 31. BUSINESS AND OTHER CONNECTIONS OF INVESTMENT ADVISER
A description of any other business, profession, vocation or employment of a substantial nature in which the Adviser, and each managing director, director or executive officer (other than Nauman S. Malik) of the Adviser, is or has been during the past two fiscal years, engaged in for his or her own account or in the capacity of director, officer, employee, partner or trustee, is set forth in Part A of this Registration Statement in the sections entitled Management and The Adviser and the Administrator. Mr. Malik joined the Adviser in June 2015 as General Counsel. Mr. Malik
was previously an associate at Dechert LLP. Additional information regarding the Adviser and its officers and directors is set forth in its Form ADV, as filed with the Securities and Exchange Commission (SEC File No. 801-77721), under the Investment Advisers Act of 1940, as amended, and is incorporated herein by reference.
ITEM 32. LOCATION OF ACCOUNTS AND RECORDS
All accounts, books, and other documents required to be maintained by Section 31(a) of the 1940 Act, and the rules thereunder are maintained at the offices of:
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(1) |
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the Registrant, Eagle Point Credit Company Inc., 20 Horseneck Lane, Greenwich, CT 06830; |
(2) |
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the Transfer Agent and Trustee, American Stock Transfer & Trust Company, LLC, 6201 15th Avenue, Brooklyn, NY 11219; |
(3) |
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the Custodian, Deutsche Bank Trust Company Americas, 1761 East St. Andrews Place, Santa Ana, CA 92705; and |
(4) |
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the Adviser, Eagle Point Credit Management LLC, 20 Horseneck Lane, Greenwich, CT 06830. |
ITEM 33. MANAGEMENT SERVICES
Not applicable.
ITEM 34. UNDERTAKINGS
|
(1) |
The Registrant undertakes to suspend the offering of shares until the prospectus is amended if (1) subsequent to the effective date of its registration statement, the net asset value declines more than ten percent from its net asset value as of the effective date of the registration statement or (2) the net asset value increases to an amount greater than its net proceeds as stated in the prospectus. |
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(3) |
In the event that the securities being registered are to be offered to existing shareholders pursuant to rights, and any securities not taken by shareholders are to be reoffered to the public, the Registrant undertakes to supplement the prospectus, after the expiration of the subscription period, to set forth the results of the subscription offer, the transactions by underwriters during the subscription period, the amount of unsubscribed securities to be purchased by underwriters, and the terms of any subsequent reoffering thereof; and further, if any public offering by the underwriters of the securities being registered is to be made on terms differing from those set forth on the cover page of the prospectus, to file a post-effective amendment to set forth the terms of such offering. |
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(4) |
The Registrant undertakes: |
|
(a) |
to file, during any period in which offers or sales are being made, a post-effective amendment to the registration statement: (1) to include any prospectus required by Section 10(a)(3) of the 1933 Act; (2) to reflect in the prospectus any facts or events after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement; and (3) to include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; |
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|
(b) |
that, for the purpose of determining any liability under the 1933 Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of those securities at that time shall be deemed to be the initial bona fide offering thereof; |
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(c) |
to remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering; |
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(d) |
that, for the purpose of determining liability under the 1933 Act to any purchaser, if the Registrant is subject to Rule 430C: Each prospectus filed pursuant to Rule 497(b), (c), (d) or (e) under the 1933 Act as part of a registration statement relating to an offering, other than prospectuses filed in reliance on Rule 430A under the 1933 Act, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately prior to such date of first use; and |
|
(e) |
that for the purpose of determining liability of the Registrant under the 1933 Act to any purchaser in the initial distribution of securities: that in a primary offering of securities of the undersigned Registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the Registrant will be a seller to the purchaser and will be considered to offer or sell such securities to the purchaser: (1) any preliminary prospectus or prospectus of the Registrant relating to the offering required to be filed pursuant to Rule 497 under the 1933 Act; (2) the portion of any advertisement pursuant to Rule 482 under the 1933 Act relating to the offering containing material information about the Registrant or its securities provided by or on behalf of the Registrant; and (3) any other
communication that is an offer in the offering made by the undersigned Registrant to the purchaser. |
|
(5) |
Registrant undertakes that: |
|
(a) |
for purposes of determining any liability under the Securities Act of 1933, as amended, the information omitted from the form of prospectus filed as part of the Registration Statement in reliance upon Rule 430A and contained in a form of prospectus filed by the Registrant pursuant to Rule 497(h) under the Securities Act of 1933, as amended, shall be deemed to be part of this Registration Statement as of the time it was declared effective; and |
|
(b) |
for purposes of determining any liability under the Securities Act of 1933, as amended, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of the securities at that time shall be deemed to be the initial bona fide offering thereof. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, and the Investment Company Act of 1940, as amended, the Registrant has duly caused this post-effective amendment no. 1 to the Registrants Registration Statement on Form N-2 to be signed on its behalf by the undersigned, thereunto duly authorized, in the Township of Greenwich, in the State of Connecticut, on the 4th day of December, 2015.
EAGLE POINT CREDIT COMPANY INC.
|
By: |
/s/ Thomas P. Majewski
![](http://www.sec.gov/Archives/edgar/data/1604174/000114420415069373/line.gif) Name: Thomas P. Majewski Title: Chief Executive Officer |
Pursuant to the requirements of the Securities Act of 1933, as amended, this post-effective amendment no. 1 to the Registrants Registration Statement on Form N-2 has been signed by the following persons in the capacities and on the dates indicated.
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Exhibit (d)(1)
EAGLE
POINT CREDIT COMPANY INC.
(Issuer)
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY, LLC
(Trustee)
Indenture
Dated as of December 4, 2015
Providing for the Issuance
of
Debt Securities
Table
of Contents
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Page |
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ARTICLE One |
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DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
1 |
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Section 1.01. |
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Definitions |
1 |
Section 1.02. |
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Compliance Certificates and Opinions |
8 |
Section 1.03. |
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Form of Documents Delivered to Trustee |
8 |
Section 1.04. |
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Acts of Holders |
9 |
Section 1.05. |
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Notices, Etc., to Trustee and Company |
10 |
Section 1.06. |
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Notice to Holders; Waiver |
10 |
Section 1.07. |
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Effect of Headings and Table of Contents |
10 |
Section 1.08. |
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Successors and Assigns |
11 |
Section 1.09. |
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Separability Clause |
11 |
Section 1.10. |
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Benefits of Indenture |
11 |
Section 1.11. |
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Governing Law |
11 |
Section 1.12. |
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Legal Holidays |
11 |
Section 1.13. |
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Submission to Jurisdiction |
11 |
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ARTICLE Two |
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SECURITIES FORMS |
11 |
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Section 2.01. |
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Forms of Securities |
11 |
Section 2.02. |
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Form of Trustee’s Certificate of Authentication |
12 |
Section 2.03. |
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Securities Issuable in Global Form |
12 |
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ARTICLE Three |
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THE SECURITIES |
13 |
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Section 3.01. |
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Amount Unlimited; Issuable in Series |
13 |
Section 3.02. |
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Denominations |
15 |
Section 3.03. |
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Execution, Authentication, Delivery and Dating |
16 |
Section 3.04. |
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Temporary Securities |
17 |
Section 3.05. |
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Registration, Registration of Transfer and Exchange |
17 |
Section 3.06. |
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Mutilated, Destroyed, Lost and Stolen Securities |
19 |
Section 3.07. |
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Payment of Interest; Interest Rights Preserved; Optional Interest Reset |
19 |
Section 3.08. |
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Optional Extension of Maturity |
21 |
Section 3.09. |
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Persons Deemed Owners |
21 |
Section 3.10. |
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Cancellation |
22 |
Section 3.11. |
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Computation of Interest |
22 |
Section 3.12. |
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Currency and Manner of Payments in Respect of Securities |
22 |
Section 3.13. |
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Appointment and Resignation of Successor Exchange Rate Agent |
25 |
Section 3.14. |
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CUSIP Numbers |
25 |
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ARTICLE Four |
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SATISFACTION AND DISCHARGE |
25 |
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Section 4.01. |
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Satisfaction and Discharge of Indenture |
25 |
Section 4.02. |
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Application of Trust Funds |
26 |
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ARTICLE Five |
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REMEDIES |
26 |
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Section 5.01. |
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Events of Default |
26 |
Section 5.02. |
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Acceleration of Maturity; Rescission and Annulment |
28 |
Section 5.03. |
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Collection of Indebtedness and Suits for Enforcement by Trustee |
28 |
Section 5.04. |
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Trustee May File Proofs of Claim |
29 |
Section 5.05. |
|
Trustee May Enforce Claims Without Possession of Securities |
30 |
Section 5.06. |
|
Application of Money Collected |
30 |
Section 5.07. |
|
Limitation on Suits |
30 |
Section 5.08. |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest |
31 |
Section 5.09. |
|
Restoration of Rights and Remedies |
31 |
Section 5.10. |
|
Rights and Remedies Cumulative |
31 |
Table
of Contents
(continued)
|
|
|
Page |
|
|
|
|
Section 5.11. |
|
Delay or Omission Not Waiver |
31 |
Section 5.12. |
|
Control by Holders of Securities |
31 |
Section 5.13. |
|
Waiver of Past Defaults |
32 |
Section 5.14. |
|
Waiver of Stay or Extension Laws |
32 |
|
|
|
|
ARTICLE Six |
|
THE TRUSTEE |
32 |
|
|
|
|
Section 6.01. |
|
Notice of Defaults |
32 |
Section 6.02. |
|
Certain Rights of Trustee |
33 |
Section 6.03. |
|
Not Responsible for Recitals or Issuance of Securities |
34 |
Section 6.04. |
|
May Hold Securities |
35 |
Section 6.05. |
|
Money Held in Trust |
35 |
Section 6.06. |
|
Compensation and Reimbursement and Indemnification of Trustee |
35 |
Section 6.07. |
|
Corporate Trustee Required; Eligibility |
35 |
Section 6.08. |
|
Disqualification; Conflicting Interests |
36 |
Section 6.09. |
|
Resignation and Removal; Appointment of Successor |
36 |
Section 6.10. |
|
Acceptance of Appointment by Successor |
37 |
Section 6.11. |
|
Merger, Conversion, Consolidation or Succession to Business |
38 |
Section 6.12. |
|
Appointment of Authenticating Agent |
38 |
|
|
|
|
ARTICLE Seven |
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
40 |
|
|
|
|
Section 7.01. |
|
Disclosure of Names and Addresses of Holders |
40 |
Section 7.02. |
|
Preservation of Information; Communications to Holders |
40 |
Section 7.03. |
|
Reports by Trustee |
40 |
Section 7.04. |
|
Reports by Company |
40 |
Section 7.05. |
|
Calculation of Original Issue Discount |
41 |
|
|
|
|
ARTICLE Eight |
|
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER |
41 |
|
|
|
|
Section 8.01. |
|
Company May Consolidate, Etc., Only on Certain Terms |
41 |
Section 8.02. |
|
Successor Person Substituted |
41 |
|
|
|
|
ARTICLE Nine |
|
SUPPLEMENTAL INDENTURES |
41 |
|
|
|
|
Section 9.01. |
|
Supplemental Indentures Without Consent of Holders |
41 |
Section 9.02. |
|
Supplemental Indentures with Consent of Holders |
42 |
Section 9.03. |
|
Execution of Supplemental Indentures |
43 |
Section 9.04. |
|
Effect of Supplemental Indentures |
44 |
Section 9.05. |
|
Conformity with Trust Indenture Act |
44 |
Section 9.06. |
|
Reference in Securities to Supplemental Indentures |
44 |
|
|
|
|
ARTICLE Ten |
|
COVENANTS |
44 |
|
|
|
|
Section 10.01. |
|
Payment of Principal, Premium, if any, and Interest |
44 |
Section 10.02. |
|
Existence; Maintenance of Office or Agency |
44 |
Section 10.03. |
|
Money for Securities Payments to Be Held in Trust |
45 |
Section 10.04. |
|
Additional Amounts |
45 |
Section 10.05. |
|
Statement as to Compliance |
46 |
Section 10.06. |
|
Payment of Taxes and Other Claims |
46 |
Section 10.07. |
|
Waiver of Certain Covenants |
46 |
|
|
|
|
ARTICLE Eleven |
|
REDEMPTION OF SECURITIES |
47 |
|
|
|
|
Section 11.01. |
|
Applicability of Article |
47 |
Section 11.02. |
|
Election to Redeem; Notice to Trustee |
47 |
Section 11.03. |
|
Selection by Trustee of Securities to Be Redeemed |
47 |
Table
of Contents
(continued)
|
|
|
Page |
|
|
|
|
Section 11.04. |
|
Notice of Redemption |
47 |
Section 11.05. |
|
Deposit of Redemption Price |
48 |
Section 11.06. |
|
Securities Payable on Redemption Date |
49 |
Section 11.07. |
|
Securities Redeemed in Part |
49 |
|
|
|
|
ARTICLE Twelve |
|
SINKING FUNDS |
49 |
|
|
|
|
Section 12.01. |
|
Applicability of Article |
49 |
Section 12.02. |
|
Satisfaction of Sinking Fund Payments with Securities |
49 |
Section 12.03. |
|
Redemption of Securities for Sinking Fund |
50 |
|
|
|
|
ARTICLE Thirteen |
|
REPAYMENT AT THE OPTION OF HOLDERS |
50 |
|
|
|
|
Section 13.01. |
|
Applicability of Article |
50 |
Section 13.02. |
|
Repayment of Securities |
50 |
Section 13.03. |
|
Exercise of Option |
50 |
Section 13.04. |
|
When Securities Presented for Repayment Become Due and Payable |
51 |
Section 13.05. |
|
Securities Repaid in Part |
51 |
|
|
|
|
ARTICLE Fourteen |
|
DEFEASANCE AND COVENANT DEFEASANCE |
51 |
|
|
|
|
Section 14.01. |
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance |
52 |
Section 14.02. |
|
Defeasance and Discharge |
51 |
Section 14.03. |
|
Covenant Defeasance |
52 |
Section 14.04. |
|
Conditions to Defeasance or Covenant Defeasance |
52 |
Section 14.05. |
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions |
53 |
|
|
|
|
ARTICLE Fifteen |
|
MEETINGS OF HOLDERS OF SECURITIES |
54 |
|
|
|
|
Section 15.01. |
|
Purposes for Which Meetings May Be Called |
54 |
Section 15.02. |
|
Call, Notice and Place of Meetings |
54 |
Section 15.03. |
|
Persons Entitled to Vote at Meetings |
55 |
Section 15.04. |
|
Quorum; Action |
55 |
Section 15.05. |
|
Determination of Voting Rights; Conduct and Adjournment of Meetings |
56 |
Section 15.06. |
|
Counting Votes and Recording Action of Meetings |
56 |
EAGLE POINT CREDIT COMPANY INC.
Reconciliation and tie between Trust Indenture
Act of 1939
and Indenture, dated as of December 4, 2015
Trust Indenture Act Section |
|
Indenture Section |
§ 310 |
(a)(1) |
|
6.07 |
|
(a)(2) |
|
6.07 |
|
(b) |
|
6.08, 6.09 |
§ 312 |
(c) |
|
7.01 |
§ 314 |
(a) |
|
7.04 |
|
(a)(4) |
|
10.05 |
|
(c)(1) |
|
1.02 |
|
(c)(2) |
|
1.02 |
|
(e) |
|
1.02 |
§ 315 |
(b) |
|
6.01 |
§ 316 |
(a) (last sentence) |
|
1.01 (“Outstanding”) |
|
(a)(1)(A) |
|
5.02, 5.12 |
|
(a)(1)(B) |
|
5.13 |
|
(b) |
|
5.08 |
§ 317 |
(a)(1) |
|
5.03 |
|
(a)(2) |
|
5.04 |
§ 318 |
(a) |
|
1.11 |
|
(c) |
|
1.11 |
NOTE: This reconciliation and tie sheet shall not, for any purpose,
be deemed to be a part of the Indenture.
INDENTURE, dated as of December 4,
2015, between Eagle Point Credit Company Inc., a Delaware corporation (the “Company”), and American Stock Transfer
& Trust Company, LLC, trustee (in such capacity and not in its individual capacity, the “Trustee”).
RECITALS
OF THE COMPANY
WHEREAS, the Company deems it necessary
to issue from time to time for its lawful purposes debt securities (hereinafter called the “Securities”) evidencing
its unsecured indebtedness, which may or may not be convertible into or exchangeable for any securities of any Person (including
the Company), and has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time
of the Securities, to be issued in one or more series, unlimited as to principal amount, to bear such rates of interest, to mature
at such times and to have such other provisions as shall be fixed as hereinafter provided;
WHEREAS, this Indenture is subject
to the provisions of the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable,
be governed by such provisions; and
WHEREAS, all things necessary to
make this Indenture a valid and legally binding agreement of, and enforceable against, the Company, in accordance with its terms,
have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises
and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities, or of a series thereof, as follows:
ARTICLE
One
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Definitions.
For all purposes of this Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(a) the
terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular
and, pursuant to Section 3.01, any such item may, with respect to any particular series of Securities, be amended or modified or
specified as being inapplicable;
(b) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms “cash transaction” and “self-liquidating paper”, as used in Section
311 of the Trust Indenture Act, shall have the meanings assigned to them in the rules of the Commission adopted under the Trust
Indenture Act;
(c) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting
principles in the United States;
(d) the
words “herein”, “hereof” and “hereunder” and other words of similar import refer to this Indenture
as a whole and not to any particular Article, Section or other subdivision;
(e) “or”
is not exclusive;
(f) “including”
shall be deemed to mean “including without limitation”;
(g) provisions
apply to successive events and transactions; and
(h) references
to sections of or rules under the Securities Exchange Act of 1934, as amended, shall be deemed to include substitute, replacement
of successor sections or rules adopted by the Commission from time to time.
Certain terms, used in other Articles herein,
are defined in those Articles.
“Act”, when used with
respect to any Holder of a Security, has the meaning specified in Section 1.04.
“Additional Amounts”
means any additional amounts that are required by a Security or by or pursuant to a Board Resolution, under circumstances specified
therein, to be paid by the Company in respect of certain taxes imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified
Person means any other Person controlling or controlled by or under common control with such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person means the power to direct the management
and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent”
means any authenticating agent appointed by the Trustee pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities of one or more series.
“Authorized Newspaper”
means a newspaper, in the English language or in an official language of the country of publication, customarily published on each
Business Day, whether or not published on Saturdays, Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
“Bankruptcy Law” has
the meaning specified in Section 5.01.
“Board of Directors”
means the board of directors of the Company or any committee of that board duly authorized to act hereunder.
“Board Resolution” means
a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means,
when used with respect to any Place of Payment or any other particular location referred to in this Indenture or in the Securities,
unless otherwise specified with respect to any Securities pursuant to Section 3.01, each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in that Place of Payment or particular location are authorized or obligated
by law or executive order to close.
“Clearstream” means Clearstream
International or its successor.
“Commission” means the
Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange Act of 1934, as amended,
or, if at any time after execution of this instrument such Commission is not existing and performing the duties now assigned to
it under the Trust Indenture Act, then the body performing such duties on such date.
“Company” means the Person
named as the “Company” in the first paragraph of this Indenture until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request”
and “Company Order” mean, respectively, a written request or order signed in the name of the Company by the
Chairman, the Chief Executive Officer or any Vice President, and by the Chief Financial Officer, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee.
“Component Currency”
has the meaning specified in Section 3.12(h).
“Conversion Date” has
the meaning specified in Section 3.12(d).
“Conversion Event” means
the cessation of use of (i) a Foreign Currency both by the government of the country which issued such currency and for the settlement
of transactions by a central bank or other public institutions of or within the international banking community, (ii) the Euro
both within the European Monetary System and for the settlement of transactions by public institutions of or within the European
Union or (iii) any currency unit (or composite currency) other than the Euro for the purposes for which it was established.
“Corporate Trust Office”
means the office of the Trustee at which, at any particular time, its corporate trust business shall be principally administered,
which office at the date hereof is located at 6201 15th Avenue, Brooklyn, New York 11219; provided, that for
purposes of presentment or surrender of securities for transfer or payment or exchange, such office is located at 6201 15th
Avenue, Brooklyn, New York 11219, or such other address as the Trustee may designate from time to time by notice to the Holders
and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee
may designate from time to time by notice to the Holders and the Company).
“corporation” includes
corporations, associations, companies and business trusts.
“Currency” means any
currency or currencies, composite currency or currency unit or currency units, including, without limitation, the Euro, issued
by the government of one or more countries or by any reorganized confederation or association of such governments.
“Default” means any event
that is, or after notice or passage of time or both would be, an Event of Default.
“Defaulted Interest”
has the meaning specified in Section 3.07(a).
“Dollar” or “$”
means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
“Euro” means the official
currency of the eurozone.
“Election Date” has the
meaning specified in Section 3.12(h).
“Euroclear” means Euroclear
Bank S.A./N.V., as operator of the Euroclear System, or its successor as operator of the Euroclear System.
“European Monetary System”
means the European Monetary System established by the Resolution of December 5, 1978 of the Council of the European Union.
“Event of Default” has
the meaning specified in Section 5.01.
“Exchange Rate Agent”
means, with respect to Securities of or within any series, unless otherwise specified with respect to any Securities pursuant to
Section 3.01, a New York Clearing House bank designated pursuant to Section 3.01 or Section 3.13.
“Exchange Rate Officer’s
Certificate” means a certificate setting forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if any) and interest, if any (on an aggregate basis
and on the basis of a Security having the lowest denomination principal amount determined in accordance with Section 3.02 in the
relevant Currency), payable with respect to a Security of any series on the basis of such Market Exchange Rate or the applicable
bid quotation signed by the Chief Executive Officer, the Chief Financial Officer or any Vice President of the Company.
“Extension Notice” has
the meaning specified in Section 3.08.
“Extension Period” has
the meaning specified in Section 3.08.
“Final Maturity” has
the meaning specified in Section 3.08.
“Foreign Currency” means
any Currency other than the Dollar, including the Euro.
“Government Obligations”
means securities that are (i) direct obligations of the United States or the government which issued the Foreign Currency in which
the Securities of a particular series are payable, for the payment of which the full faith and credit of the United States or such
other government is pledged or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality
of the United States or such government that issued the Foreign Currency in which the Securities of such series are payable, the
timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States or such other
government, which, in either case, are not callable or redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific
payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a
depository receipt; provided that (except as required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation
or the specific payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
“Holder” means the Person
in whose name a Security is registered in the Security Register.
“Indenture” means this
instrument as originally executed or as it may from time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 3.01; provided, however, that, if at any time more than one Person is acting
as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for
which such Person is Trustee, this instrument as originally executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms
of the or those particular series of Securities for which such Person is Trustee established as contemplated by Section 3.01; exclusive,
however, of any provisions or terms that relate solely to other series of Securities for which such Person is not Trustee, regardless
of when such terms or provisions were adopted, and exclusive of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee,
was not a party.
“Indexed Security” means
a Security as to which all or certain interest payments and/or the principal amount payable at Maturity are determined by reference
to prices, changes in prices, or differences between prices, of securities, Currencies, intangibles, goods, articles or commodities
or by such other objective price, economic or other measures as are specified in Section 3.01 hereof.
“Interest” means, when
used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, interest payable
after Maturity, and, when used with respect to a Security which provides for the payment of Additional Amounts pursuant to Section
10.04, includes such Additional Amounts.
“Interest Payment Date”
means, when used with respect to any Security, the Stated Maturity of an installment of interest on such Security.
“Investment Company Act”
means the Investment Company Act of 1940, and the rules, regulations and interpretations promulgated by the Commission thereunder
and any statute successor thereto, in each case, as amended from time to time.
Market Exchange Rate” means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01, (i) for any conversion involving a currency
unit, on the one hand, and Dollars or any Foreign Currency, on the other, the exchange rate between the relevant currency unit
and Dollars or such Foreign Currency calculated by the method specified pursuant to Section 3.01 for the Securities of the relevant
series, (ii) for any conversion of Dollars into any Foreign Currency, the noon buying rate for such Foreign Currency for cable
transfers quoted in The City of New York as certified for customs purposes by the Federal Reserve Bank of New York and (iii) for
any conversion of one Foreign Currency into Dollars or another Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made from major banks located in either The City of
New York, London or any other principal market for Dollars or such purchased Foreign Currency, in each case determined by the Exchange
Rate Agent. Unless otherwise specified with respect to any Securities pursuant to Section 3.01, in the event of the unavailability
of any of the exchange rates provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate Agent shall use, in its
sole discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in The City of New York, London or other principal market for such currency
or currency unit in question, or such other quotations as the Exchange Rate Agent shall deem appropriate. Unless otherwise specified
by the Exchange Rate Agent, if there is more than one market for dealing in any currency or currency unit by reason of foreign
exchange regulations or otherwise, the market to be used in respect of such currency or currency unit shall be that upon which
a nonresident issuer of securities designated in such currency or currency unit would purchase such currency or currency unit in
order to make payments in respect of such securities as determined by the Exchange Rate Agent, in its sole discretion.
“Maturity” means, when
used with respect to any Security, the date on which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption,
notice of option to elect repayment, notice of exchange or conversion or otherwise.
“Notice of Default” has
the meaning provided in Section 5.01.
“Officer’s Certificate”
means a certificate signed on behalf of the Company by an officer of the Company, who must be the Chairman, the Chief Executive
Officer, the Chief Financial Officer, any Vice President or the Secretary and delivered to the Trustee.
“Opinion of Counsel”
means a written opinion of counsel, who may be counsel for the Company or who may be an employee of or other counsel for the Company,
and who shall be acceptable to the Trustee.
“Optional Reset Date”
has the meaning specified in Section 3.07(b).
“Original Issue Discount Security”
means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 5.02.
“Original Stated Maturity”
has the meaning specified in Section 3.08.
“Outstanding” means,
when used with respect to Securities or any series of Securities, all Securities or all Securities of such series, as the case
may be, theretofore authenticated and delivered under this Indenture as of the date of determination, except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities,
or portions thereof, for whose payment or redemption or repayment at the option of the Holder money in the necessary amount has
been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in
trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities; provided that,
if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities,
except to the extent provided in Sections 14.02 and 14.03, with respect to which the Company has effected defeasance and/or covenant
defeasance as provided in Article Fourteen; and
(iv) Securities
that have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and
delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a protected purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether
the Holders of the requisite principal amount of the Outstanding Securities shall have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose
of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue Discount Security that may
be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal
to the amount of principal thereof that would be (or shall have been declared to be) due and payable, at the time of such determination,
upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such determination or calculation and that shall be deemed Outstanding
for such purpose shall be equal to the Dollar equivalent, determined as of the date such Security is originally issued by the Company
as set forth in an Exchange Rate Officer’s Certificate delivered to the Trustee, of the principal amount (or, in the case
of an Original Issue Discount Security or Indexed Security, the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above or (iii) below, respectively) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose
shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect
to such Security pursuant to Section 3.01, and (iv) Securities owned by the Company or any other obligor upon the Securities or
any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding; except that,
in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver or upon any such determination as to the presence of a quorum, only Securities which a Responsible
Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so
to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
“Paying Agent” means
any Person authorized by the Company to pay the principal of (or premium, if any) or interest, if any, on any Securities on behalf
of the Company.
“Person” means any natural
person or corporation, partnership, joint venture, association, joint-stock company, limited liability company, business trust,
trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Place of Payment” means,
when used with respect to the Securities of or within any series, the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as contemplated by Sections 3.01 and 10.02.
“Predecessor Security”
of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange
for or in lieu of a mutilated, destroyed, lost or stolen Security.
“Redemption Date” means,
when used with respect to any Security to be redeemed, in whole or in part, the date fixed for such redemption by or pursuant to
this Indenture.
“Redemption Price” means,
when used with respect to any Security to be redeemed, the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security”
means any Security that is registered in the Security Register.
“Regular Record Date”
means, for the interest payable on any Interest Payment Date on the Registered Securities of or within any series, the date specified
for that purpose as contemplated by Section 3.01, whether or not a Business Day.
“Repayment Date” means,
when used with respect to any Security to be repaid at the option of the Holder, the date fixed for such repayment by or pursuant
to this Indenture.
“Repayment Price” means,
when used with respect to any Security to be repaid at the option of the Holder, the price at which it is to be repaid by or pursuant
to this Indenture.
“Reset Notice” has the
meaning specified in Section 3.07(b).
“Responsible Officer”
means, when used with respect to the Trustee, any officer of the Trustee assigned by the Trustee to administer its corporate trust
matters and who shall have direct responsibility for the administration of this Indenture.
“Security” or “Securities”
has the meaning stated in the first recital of this Indenture and, more particularly, means any Security or Securities authenticated
and delivered under this Indenture; provided, however, that, if at any time there is more than one Person acting
as Trustee under this Indenture, “Securities” with respect to the Indenture as to which such Person is Trustee shall
have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered
under this Indenture, exclusive, however, of Securities of any series as to which such Person is not Trustee.
“Security Register” and
“Security Registrar” have the respective meanings specified in Section 3.05.
“Special Record Date”
for the payment of any Defaulted Interest on the Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 3.07.
“Specified Amount” has
the meaning specified in Section 3.12(h).
“Stated Maturity” means,
when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such
Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable,
as such date may be extended pursuant to the provisions of Section 3.08.
“Subsequent Interest Period”
has the meaning specified in Section 3.07(b).
“Trust Indenture Act”
or “TIA” means the Trust Indenture Act of 1939, as amended, as in force at the date as of which this Indenture
was executed, except as provided in Section 9.05.
“Trustee” means the Person
named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter, “Trustee” shall mean or include each Person who is
then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee”
as used with respect to the Securities of any series shall mean only the Trustee with respect to Securities of that series.
“United States” means,
unless otherwise specified with respect to any Securities pursuant to Section 3.01, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person”
means, unless otherwise specified with respect to any Securities pursuant to Section 3.01, any natural person who is a citizen
or resident of the United States or a corporation, partnership, joint venture, association, joint-stock company, limited liability
company, unincorporated organization or other entity created or organized in or under the laws of the United States, any state
thereof or the District of Columbia (other than a partnership that is not treated as a United States Person under any applicable
Treasury regulations), any estate the income of which is subject to United States federal income taxation regardless of its source,
or any trust if a court within the United States is able to exercise primary supervision over the administration of the trust and
one or more United States persons have the authority to control all substantial decisions of the trust. Notwithstanding the preceding
sentence, to the extent provided in the Treasury regulations, certain trusts in existence on August 20, 1996, and treated as United
States persons prior to such date that elect to continue to be treated as United States Persons, will also be United States persons.
“Valuation Date” has
the meaning specified in Section 3.12(c).
“Yield to Maturity” means
the yield to maturity, computed at the time of issuance of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation
principles.
Section 1.02. Compliance
Certificates and Opinions.
Upon any application or request by the Company
to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee an Officer’s
Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have
been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that, in the case of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect
to compliance with a condition or covenant provided for in this Indenture (other than pursuant to Section 10.05) shall include:
(a) a
statement that each individual signing such certificate or opinion has read such condition or covenant and the definitions herein
relating thereto;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained
in such certificate or opinion are based;
(c) a
statement that such individual signing the certificate or opinion has made such examination or investigation as is necessary to
enable such individual to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(d) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 1.03. Form
of Documents Delivered to Trustee.
In any case where several matters are required
to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such
Person may certify or give an opinion as to some matters and one or more other such Persons as to other matters, and any such Person
may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer
of the Company may be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a certificate or representations
by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate
or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information as to such factual matters is in the possession of the Company,
unless such counsel knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give
or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture,
they may, but need not, be consolidated and form one instrument.
Section 1.04. Acts
of Holders.
(a) Any
request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders in person or by agents duly appointed in writing
or approved at a meeting of the holders. Except as herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record of such meeting or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments or so voting at
any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any
Person of a Security, shall be sufficient for any purpose of this Indenture and conclusive in favor of the Trustee and the Company
and any agent of the Trustee or the Company if made in the manner provided in this Section. The record of any meeting of Holders
of Securities shall be proved in the manner provided in Section 15.06.
(b) The
fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying
that the individual signing such instrument or writing acknowledged to him or her the execution thereof. Where such execution is
by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing
the same, may also be proved in any other manner that the Trustee deems reasonably sufficient.
(c) The
ownership of Registered Securities shall be proved by the Security Register.
(d) If
the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior to the first solicitation
of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date
is fixed, such request, demand, authorization, direction, notice, consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities
shall be computed as of such record date; provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than
eleven months after the record date.
(e) Any
request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security Registrar,
any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 1.05. Notices,
Etc., to Trustee and Company.
Any request, demand, authorization, direction,
notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished
to, or filed with:
(i) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if in writing and mailed, first-class postage
prepaid or sent via overnight courier guaranteeing next day delivery or same day messenger service to the Trustee at its Corporate
Trust Office, Attention: General Counsel; or
(ii) the
Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, or sent via overnight courier guaranteeing next day delivery or same day
messenger service, to the Company, to the attention of its General Counsel at 20 Horseneck Lane, Greenwich, Connecticut 06830.
The Company or the Trustee, by notice to
the other, may designate additional or different addresses for subsequent notices or communications.
All notices and communications (other than
those sent to Holders) shall be deemed to have been duly given: (i) at the time delivered by hand, if personally delivered; (ii)
five Business Days after being deposited in the mail, postage prepaid; and (iii) the next Business Day after timely delivery to
the courier, if sent by overnight air courier guaranteeing next day delivery.
Section 1.06. Notice
to Holders; Waiver.
Where this Indenture provides for notice
of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, or by overnight courier guaranteeing
next day delivery to each such Holder affected by such event, at such Holder’s address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. Any notice or
communication shall also be so mailed to any Person described in TIA Section 313(c), to the extent required by the TIA. In any
case where notice to Holders of Registered Securities is given by mail or by overnight courier guaranteeing next day delivery,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency
of such notice with respect to other Holders of Registered Securities. Any notice mailed or sent to a Holder in the manner herein
prescribed shall be conclusively deemed to have been received by such Holder, whether or not such Holder actually receives such
notice.
If by reason of the suspension of or irregularities
in regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such notification
to Holders of Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient notification
to such Holders for every purpose hereunder.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the Person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
Section 1.07. Effect
of Headings and Table of Contents.
The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 1.08. Successors
and Assigns.
All covenants and agreements in this Indenture
by the Company shall bind its successors and assigns, whether so expressed or not.
Section 1.09. Separability
Clause.
In case any provision in this Indenture
or in any Security shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
Section 1.10. Benefits
of Indenture.
Nothing in this Indenture or in the Securities,
express or implied, shall give to any Person, other than the parties hereto, any Security Registrar, any Paying Agent, any Authenticating
Agent and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 1.11. Governing
Law.
This Indenture and the Securities shall
be governed by and construed in accordance with the law of the State of New York. This Indenture is subject to the provisions of
the Trust Indenture Act that are required to be part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 1.12. Legal
Holidays.
In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any Security shall not be a Business
Day at any Place of Payment, then (notwithstanding any other provision of this Indenture or any Security other than a provision
in the Securities of any series which specifically states that such provision shall apply in lieu of this Section), payment of
principal (or premium, if any) or interest, if any, need not be made at such Place of Payment on such date, but may be made on
the next succeeding Business Day at such Place of Payment with the same force and effect as if made on the Interest Payment Date,
Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity; provided that no interest
shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date,
sinking fund payment date, Stated Maturity or Maturity, as the case may be.
Section 1.13. Submission
to Jurisdiction.
The Company hereby irrevocably submits to
the non-exclusive jurisdiction of any New York State or federal court sitting in The City of New York in any action or proceeding
arising out of or relating to the Indenture and the Securities of any series, and the Company hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in such New York State or federal court. The Company
hereby irrevocably waives, to the fullest extent it may effectively do so, the defense of an inconvenient forum to the maintenance
of such action or proceeding.
ARTICLE
Two
SECURITIES
FORMS
Section 2.01. Forms
of Securities.
The Registered Securities of each series,
the temporary global Securities of each series, if any, and the permanent global Securities of each series, if any, to be endorsed
thereon shall be in substantially the forms as shall be established in one or more indentures supplemental hereto or approved from
time to time by or pursuant to a Board Resolution in accordance with Section 3.01, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto (and applicable
law), and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed
thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required
to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange
on which the Securities may be listed, or to conform to usage.
The definitive Securities shall be produced
in any manner, as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form
of Trustee’s Certificate of Authentication.
Subject to Section 6.11, the Trustee’s
certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
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American Stock Transfer & Trust Company, LLC, trustee |
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By: |
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Authorized Officer |
Section 2.03. Securities
Issuable in Global Form.
If Securities of or within a series are
issuable in global form, as specified as contemplated by Section 3.01, then, notwithstanding clause (viii) of Section 3.01 and
the provisions of Section 3.02, any such Security shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount of Outstanding Securities of such series from time
to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time
to time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form to reflect the amount or any
increase or decrease in the amount of Outstanding Securities represented thereby shall be made by the Trustee or the Security Registrar
in such manner and upon instructions given by such Person or Persons as shall be specified therein or in the Company Order to be
delivered to the Trustee pursuant to Section 3.03 or 3.04. Subject to the provisions of Section 3.03 and, if applicable, Section
3.04, the Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner and
upon instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant
to Section 3.03 or 3.04 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement,
delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel.
The provisions of the last sentence of Section
3.03 shall apply to any Security represented by a Security in global form if such Security was never issued and sold by the Company
and the Company delivers to the Trustee or the Security Registrar the Security in global form together with written instructions
(which need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) with regard to the reduction in
the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of
Section 3.03.
Notwithstanding the provisions of Section
3.07, unless otherwise specified as contemplated by Section 3.01, payment of principal of (and premium, if any) and interest, if
any, on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section
3.09 and except as provided in the preceding paragraph, the Company, the Trustee and any agent of the Company and the Trustee,
as applicable, shall treat the Holder of a permanent global Security in registered form as the Holder of such principal amount
of Outstanding Securities represented by such permanent global Security.
ARTICLE
Three
THE
SECURITIES
Section 3.01. Amount
Unlimited; Issuable in Series.
The aggregate principal amount of Securities
which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more
series. There shall be established in one or more Board Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officer’s Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of Securities of any series, any or all of the following,
as applicable (each of which (except for the matters set forth in clauses (i), (ii) and (xv) below), if so provided, may be determined
from time to time by the Company with respect to unissued Securities of the series when issued from time to time):
(i) the
title of the Securities of the series including CUSIP numbers (which shall distinguish the Securities of such series from all other
series of Securities);
(ii) any
limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Section 3.04, 3.05, 3.06, 9.06, 11.07 or 13.05, and except for any Securities which, pursuant to Section
3.03, are deemed never to have been authenticated and delivered hereunder);
(iii) the
date or dates, or the method by which such date or dates shall be determined or extended, on which the principal of the Securities
of the series shall be payable;
(iv) the
rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate or rates shall
be determined, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method by which such date shall be determined, and the basis upon
which such interest shall be calculated if other than that of a 360-day year of twelve 30-day months;
(v) the
place or places, if any, other than or in addition to the Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall be payable, any Registered Securities of the series may
be surrendered for registration of transfer, Securities of the series may be surrendered for exchange, Securities of that series
that are convertible or exchangeable may be surrendered for conversion or exchange, as applicable, and notices or demands to or
upon the Company in respect of the Securities of the series and this Indenture may be served;
(vi) the
period or periods within which, or the date or dates on which, the price or prices at which, the Currency or Currencies in which,
and other terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have the option;
(vii) the
obligation, if any, of the Company to redeem, repay or purchase Securities of the series pursuant to any sinking fund or analogous
provision or at the option of a Holder thereof, and the period or periods within which, or the date or dates on which, the price
or prices at which, the Currency or Currencies in which, and other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
(viii) if
other than denominations of $1,000 and any integral multiple thereof, the denomination or denominations in which any Registered
Securities of the series shall be issuable;
(ix) if
other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(x) if
other than the principal amount thereof, the portion of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02, upon redemption of the Securities of the series
which are redeemable before their Stated Maturity, upon surrender for repayment at the option of the Holder, or which the Trustee
shall be entitled to claim pursuant to Section 5.04 or the method by which such portion shall be determined;
(xi) if
other than Dollars, the Currency or Currencies in which payment of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of the series shall be denominated and the particular provisions
applicable thereto in accordance with, in addition to or in lieu of any of the provisions of Section 3.12;
(xii) whether
the amount of payments of principal of (or premium, if any) or interest, if any, on the Securities of the series may be determined
with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or
more Currencies, commodities, equity indices or other indices), and the manner in which such amounts shall be determined;
(xiii) whether
the principal of (or premium, if any) or interest, if any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies other than that in which such Securities are denominated or stated to
be payable, the period or periods within which (including the Election Date), and the terms and conditions upon which, such election
may be made, and the time and manner of determining the exchange rate between the Currency or Currencies in which such Securities
are denominated or stated to be payable and the Currency or Currencies in which such Securities are to be paid, in each case in
accordance with, in addition to or in lieu of any of the provisions of Section 3.12;
(xiv) provisions,
if any, granting special rights to the Holders of Securities of the series (solely to the extent permitted under the Investment
Company Act, if then applicable to the Company);
(xv) any
deletions from, modifications of or additions to the Events of Default or covenants (including any deletions from, modifications
of or additions to any of the provisions of Section 10.07) of the Company with respect to Securities of the series, whether or
not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(xvi) whether
any Securities of the series are to be issuable initially in temporary global form and whether any Securities of the series are
to be issuable in permanent global form and, if so, whether beneficial owners of interests in any such permanent global Security
may exchange such interests for Securities of such series in certificated form and of like tenor of any authorized form and denomination
and the circumstances under which any such exchanges may occur, if other than in the manner provided in Section 3.05;
(xvii) the
date as of which any temporary global Security representing Outstanding Securities of the series shall be dated if other than the
date of original issuance of the first Security of the series to be issued;
(xviii) the
Person to whom any interest on any Registered Security of the series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest,
and the extent to which, or the manner in which, any interest payable on a temporary global Security on an Interest Payment Date
shall be paid if other than in the manner provided in Section 3.04; and the extent to which, or the manner in which, any interest
payable on a permanent global Security on an Interest Payment Date shall be paid if other than in the manner provided in Section
3.07;
(xix) the
applicability, if any, of Sections 14.02 and/or 14.03 to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen (solely to the extent permitted under the Investment Company
Act, if then applicable to the Company);
(xx) if
the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(xxi) whether,
under what circumstances and the Currency in which, the Company shall pay Additional Amounts as contemplated by Section 10.04 on
the Securities of the series to any Holder who is not a United States Person (including any modification to the definition of such
term) in respect of any tax, assessment or governmental charge and, if so, whether the Company shall have the option to redeem
such Securities rather than pay such Additional Amounts (and the terms of any such option);
(xxii) the
designation of the initial Exchange Rate Agent, if any;
(xxiii) if
the Securities of the series are to be issued upon the exercise of warrants, the time, manner and place for such Securities to
be authenticated and delivered;
(xxiv) if
the Securities of the series are to be convertible into or exchangeable for any securities of any Person (including the Company),
the terms and conditions upon which such Securities will be so convertible or exchangeable;
(xxv) if
the Securities of the series are to be listed on a securities exchange, the name of such exchange; and
(xxvi) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture or the requirements of the
Investment Company Act (if then applicable to the Company) or the Trust Indenture Act), including secured Securities and guarantees
of Securities.
All Securities of any one series need not
be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the Holders, for issuances
of additional Securities of such series.
If any of the terms of the Securities of
any series are established by action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s)
shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery
of the Officer’s Certificate setting forth the terms of the Securities of such series.
Section 3.02. Denominations.
The Securities of each series shall be issuable
in such denominations as shall be specified as contemplated by Section 3.01. With respect to Securities of any series denominated
in Dollars, in the absence of any such provisions with respect to the Securities of any series, the Registered Securities of such
series, other than Registered Securities issued in global form (which may be of any denomination) shall be issuable in denominations
of $1,000 and any integral multiple thereof.
Section 3.03. Execution,
Authentication, Delivery and Dating.
The Securities shall be executed on behalf
of the Company by its Chairman, the Chief Executive Officer, the Chief Financial Officer or one of its Vice Presidents and attested
by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Securities may be manual or
facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that
such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or
did not hold such offices at the date of such Securities.
At any time and from time to time after
the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee
in accordance with the Company Order shall authenticate and deliver such Securities. If all the Securities of any series are not
to be issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company
Order may set forth procedures acceptable to the Trustee for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of issuance and date from which interest shall accrue. In
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities,
the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully protected in relying
upon,
(a) an
Opinion of Counsel stating,
(i) that
the form or forms of such Securities have been established in conformity with the provisions of this Indenture;
(ii) that
the terms of such Securities have been established in conformity with the provisions of this Indenture; and
(iii) that
such Securities, when completed by appropriate insertions and executed and delivered by the Company to the Trustee for authentication
in accordance with this Indenture, authenticated and delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion of Counsel, shall constitute legal, valid and binding
obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, fraudulent conveyance,
insolvency, reorganization, receivership, moratorium and other similar laws of general applicability relating to or affecting the
enforcement of creditors’ rights, to general equitable principles and to such other qualifications as such counsel shall
conclude do not materially affect the rights of Holders of such Securities; and
(b) an
Officer’s Certificate stating, to the best of the knowledge of the signer of such certificate, that no Event of Default with
respect to any of the Securities shall have occurred and be continuing.
Notwithstanding the provisions of Section
3.01 and of this Section 3.03, if all the Securities of any series are not to be issued at one time, it shall not be necessary
to deliver an Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order, Opinion of Counsel
or Officer’s Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security
of such series, but such order, opinion and certificates, with appropriate modifications to cover such future issuances, shall
be delivered at or before the time of issuance of the first Security of such series.
If such form or terms have been so established,
the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee’s own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the Trustee reasonably believes that it would be unable
to perform its duties with respect to such Securities.
Each Registered Security shall be dated
the date of its authentication.
No Security shall be entitled to any benefit
under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee or an Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture. Notwithstanding the foregoing,
if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company
shall deliver such Security to the Trustee for cancellation as provided in Section 3.10 together with a written statement (which
need not comply with Section 1.02 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been
issued and sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this Indenture.
Section 3.04. Temporary
Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities
substantially of the tenor of the definitive Securities in lieu of which they are issued, in registered form, or, if authorized,
in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as conclusively evidenced by their execution of such
Securities. In the case of Securities of any series, such temporary Securities may be in global form.
If temporary Securities of any series are
issued, the Company shall cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation
of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like principal amount and like
tenor of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of
any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series.
Section 3.05. Registration,
Registration of Transfer and Exchange.
The Company shall cause to be kept at the
Corporate Trust Office of the Trustee or in any office or agency of the Company in a Place of Payment a register for each series
of Securities (the registers maintained in such office or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the “Security Register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities.
The Security Register shall be in written form or any other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose
of registering Registered Securities and transfers of Registered Securities on such Security Register as herein provided, and for
facilitating exchanges of temporary global Securities for permanent global Securities or definitive Securities, or both, or of
permanent global Securities for definitive Securities, or both, as herein provided. In the event that the Trustee shall cease to
be Security Registrar, it shall have the right to examine the Security Register at all reasonable times.
Upon surrender for registration of transfer
of any Registered Security of any series at any office or agency of the Company in a Place of Payment for that series, the Company
shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series, of any authorized denominations and of a like aggregate principal amount, bearing
a number not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered
Securities of any series may be exchanged for other Registered Securities of the same series, of any authorized denomination or
denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Registered
Securities to be exchanged at any such office or agency. Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities that the Holder making the exchange
is entitled to receive.
Notwithstanding the foregoing, except as
otherwise specified as contemplated by Section 3.01, any permanent global Security shall be exchangeable only as provided in this
paragraph. If any beneficial owner of an interest in a permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated
by Section 3.01 and provided that any applicable notice provided in the permanent global Security shall have been given, then without
unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s
interest in such permanent global Security, executed by the Company. On or after the earliest date on which such interests may
be so exchanged, such permanent global Security shall be surrendered by the London office of a depositary or common depositary
or such other depositary as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s
agent for such purpose, or to the Security Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities
of the same series without charge and the Trustee shall authenticate and deliver, in exchange for each portion of such permanent
global Security, an equal aggregate principal amount of definitive Securities of the same series of authorized denominations and
of like tenor as the portion of such permanent global Security to be exchanged; provided, however, that no such exchanges
may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending
on the relevant Redemption Date if the Security for which exchange is requested may be among those selected for redemption. If
a Registered Security is issued in exchange for any portion of a permanent global Security after the close of business at the office
or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency
on the related proposed date for payment of Defaulted Interest or interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such
Interest Payment Date or proposed date for payment, as the case may be, only to the Person to whom interest in respect of such
portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration
of transfer or exchange of Securities shall be valid obligations of the Company, evidencing the same debt and entitled to the same
benefits under this Indenture as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered
for registration of transfer or for exchange shall (if so required by the Company or the Security Registrar or any transfer agent)
be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar,
and duly executed by the Holder thereof or his attorney or any transfer agent duly authorized in writing.
No service charge shall be made for any
registration of transfer or exchange of Securities, but the Company or the Trustee may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.04, 9.06, 11.07 or 13.05 not involving any transfer.
The Company shall not be required (i) to
issue, register the transfer of or exchange any Security if such Security may be among those selected for redemption during a period
beginning at the opening of business 15 days before selection of the Securities to be redeemed under Section 11.03 and ending at
the close of business on the day of the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange
any Registered Security so selected for redemption in whole or in part, except, in the case of any Registered Security to be redeemed
in part, the portion thereof not to be redeemed or (iii) to issue, register the transfer of or exchange any Security that has been
surrendered for repayment at the option of the Holder, except the portion, if any, of such Security not to be so repaid.
Section 3.06. Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered
to the Trustee or the Company, together with, in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series and principal amount, containing identical terms and provisions
and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company
and to the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a protected purchaser, the Company shall, subject
to the following paragraph, execute and, upon its request, the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security, a new Security of the same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding.
Notwithstanding the provisions of the previous
two paragraphs, in case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable,
the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under
this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series
duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 3.07. Payment
of Interest; Interest Rights Preserved; Optional Interest Reset.
(a) Except
as otherwise specified with respect to a series of Securities in accordance with the provisions of Section 3.01, interest, if any,
on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section
10.02; provided, however, that in the event that the Securities become represented by certificates, the Company shall
pay each installment of interest by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 3.09, to the address of such Person as it appears on the Security Register or (ii) at the option of
the Holder as notified to the Company, transfer to an account maintained by the payee located in the United States.
Except as otherwise specified with respect
to a series of Securities in accordance with the provisions of Section 3.01, any interest on any Registered Security of any series
that is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date by
virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided
in clause (i) or (ii) below:
(i) The
Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities of such series
(or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner: The Company shall notify the Trustee in writing of the amount
of Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment (which
shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall deposit with
the Trustee an amount of money in the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d)
and 3.12(e)) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10
days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Registered Securities of such series at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the following clause (ii).
(ii) The
Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (and certification
by the Company that the proposed manner of payment complies with the requirements of this clause (ii)), such manner of payment
shall be deemed practicable by the Trustee.
(b) The
provisions of this Section 3.07(b) may be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 3.01). The interest rate (or the spread or spread multiplier
used to calculate such interest rate, if applicable) on any Security of such series may be reset by the Company on the date or
dates specified on the face of such Security (each an “Optional Reset Date”). The Company may exercise such
option with respect to such Security by notifying the Trustee of such exercise at least 45 but not more than 60 days prior to an
Optional Reset Date for such Security. Not later than 40 days prior to each Optional Reset Date, the Trustee shall transmit, in
the manner provided for in Section 1.06, to the Holder of any such Security a notice (the “Reset Notice”), indicating
whether the Company has elected to reset the interest rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable), and if so (i) such new interest rate (or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset Date to the next Optional Reset Date, or if there
is no such next Optional Reset Date, to the Stated Maturity of such Security (each such period, a “Subsequent Interest
Period”), including the date or dates on which, or the period or periods during which, and the price or prices at which
such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later
than 20 days prior to the Optional Reset Date (or if 20 days does not fall on a Business Day, the next succeeding Business Day),
the Company may, at its option, revoke the interest rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish a higher interest rate (or a spread or spread multiplier providing
for a higher interest rate, if applicable) for the Subsequent Interest Period by causing the Trustee to transmit, in the manner
provided for in Section 1.06, notice of such higher interest rate (or such higher spread or spread multiplier providing for a higher
interest rate, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate such interest rate, if applicable) is reset on an
Optional Reset Date, and with respect to which the Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph, shall bear such higher interest rate (or such
higher spread or spread multiplier providing for a higher interest rate, if applicable).
The Holder of any such Security will have
the option to elect repayment by the Company of the principal of such Security on each Optional Reset Date at a price equal to
the principal amount thereof plus interest accrued to such Optional Reset Date. In order to obtain repayment on an Optional Reset
Date, the Holder must follow the procedures set forth in Article Thirteen for repayment at the option of Holders, except that the
period for delivery or notification to the Trustee shall be at least 25 but not more than 35 days prior to such Optional Reset
Date and except that, if the Holder has tendered any Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of business on the tenth day before such Optional Reset
Date.
Subject to the foregoing provisions of this
Section and Section 3.05, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in
lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, that were carried by such other
Security.
Section 3.08. Optional
Extension of Maturity.
The provisions of this Section 3.08 may
be made applicable to any series of Securities pursuant to Section 3.01 (with such modifications, additions or substitutions as
may be specified pursuant to such Section 3.01). The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security (each, an “Extension Period”)
up to, but not beyond, the date (the “Final Maturity”) set forth on the face of such Security. The Company may
exercise such option with respect to any Security by notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of such option (the “Original Stated Maturity”).
If the Company exercises such option, the Trustee shall transmit, in the manner provided for in Section 1.06, to the Holder of
such Security not later than 40 days prior to the Original Stated Maturity a notice (the “Extension Notice”),
prepared by the Company, indicating (i) the election of the Company to extend the Stated Maturity, (ii) the new Stated Maturity,
(iii) the interest rate (or spread, spread multiplier or other formula to calculate such interest rate, if applicable), if any,
applicable to the Extension Period and (iv) the provisions, if any, for redemption during such Extension Period. Upon the Trustee’s
transmittal of the Extension Notice, the Stated Maturity of such Security shall be extended automatically and, except as modified
by the Extension Notice and as described in the next paragraph, such Security shall have the same terms as prior to the transmittal
of such Extension Notice.
Notwithstanding the foregoing, not later
than 20 days before the Original Stated Maturity (or if 20 days does not fall on a Business Day, the next succeeding Business Day)
of such Security, the Company may, at its option, revoke the interest rate (or spread, spread multiplier or other formula to calculate
such interest rate, if applicable) provided for in the Extension Notice and establish a higher interest rate (or spread, spread
multiplier or other formula to calculate such higher interest rate, if applicable) for the Extension Period by causing the Trustee
to transmit, in the manner provided for in Section 1.06, notice of such higher interest rate (or spread, spread multiplier or other
formula to calculate such interest rate, if applicable) to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended shall bear such higher interest rate.
If the Company extends the Stated Maturity
of any Security, the Holder will have the option to elect repayment of such Security by the Company on the Original Stated Maturity
at a price equal to the principal amount thereof, plus interest accrued to such date. In order to obtain repayment on the Original
Stated Maturity once the Company has extended the Stated Maturity thereof, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders, except that the period for delivery or notification to the Trustee shall be at
least 25 but not more than 35 days prior to the Original Stated Maturity and except that, if the Holder has tendered any Security
for repayment pursuant to an Extension Notice, the Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the tenth day before the Original Stated Maturity.
Section 3.09. Persons
Deemed Owners.
Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee, as applicable, may
treat the Person in whose name such Registered Security is registered as the owner of such Registered Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to Sections 3.05 and 3.07) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee, as applicable, shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying
Agent or the Security Registrar shall have any responsibility or liability for any aspect of the records relating to or payments
made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect
to any global temporary or permanent Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company
or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such depositary and owners of beneficial interests in such global
Security, the operation of customary practices governing the exercise of the rights of such depositary (or its nominee) as Holder
of such global Security.
Section 3.10. Cancellation.
All Securities surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities surrendered
directly to the Trustee for any such purpose shall be promptly cancelled by the Trustee. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired
in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. If the Company shall so acquire any of the Securities, however, such acquisition shall not
operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered
to the Trustee for cancellation. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. Cancelled Securities held by the Trustee shall be destroyed
by the Trustee in accordance with its customary procedures, unless by a Company Order the Company directs the Trustee to deliver
a certificate of such destruction to the Company or to return them to the Company.
Section 3.11. Computation
of Interest.
Except as otherwise specified as contemplated
by Section 3.01 with respect to Securities of any series, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year consisting of twelve 30-day months.
Section 3.12. Currency
and Manner of Payments in Respect of Securities.
(a) Unless
otherwise specified with respect to any Securities pursuant to Section 3.01, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the Holders of which have not made the election provided for
in paragraph (b) below, payment of the principal of (and premium, if any) and interest, if any, on any Registered Security of such
series shall be made in the Currency in which such Registered Security is payable. The provisions of this Section 3.12 may be modified
or superseded with respect to any Securities pursuant to Section 3.01.
(b) It
may be provided pursuant to Section 3.01 with respect to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or premium, if any) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated for such election by delivering to the Trustee for such
series of Registered Securities a written election with signature guarantees and in the applicable form established pursuant to
Section 3.01, not later than the close of business on the Election Date immediately preceding the applicable payment date. If a
Holder so elects to receive such payments in any such Currency, such election shall remain in effect for such Holder or any transferee
of such Holder until changed by such Holder or such transferee by written notice to the Trustee for such series of Registered Securities
(but any such change must be made not later than the close of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date, and no such change of election may be made with respect to
payments to be made on any Registered Security of such series with respect to which an Event of Default has occurred or with respect
to which the Company has deposited funds pursuant to Article Four or Fourteen or with respect to which a notice of redemption has
been given by the Company or a notice of option to elect repayment has been sent by such Holder or such transferee). Any Holder
of any such Registered Security who shall not have delivered any such election to the Trustee of such series of Registered Securities
not later than the close of business on the applicable Election Date will be paid the amount due on the applicable payment date
in the relevant Currency as provided in Section 3.12(a). The Trustee for each such series of Registered Securities shall notify
the Exchange Rate Agent as soon as practicable after the Election Date of the aggregate principal amount of Registered Securities
for which Holders have made such written election.
(c) Unless
otherwise specified pursuant to Section 3.01, if the election referred to in paragraph (b) above has been provided for pursuant
to Section 3.01, then, unless otherwise specified pursuant to Section 3.01, not later than the fourth Business Day after the Election
Date for each payment date for Registered Securities of any series, the Exchange Rate Agent shall deliver to the Company a written
notice specifying the Currency in which Registered Securities of such series are payable, the respective aggregate amounts of principal
of (and premium, if any) and interest, if any, on the Registered Securities to be paid on such payment date, specifying the amounts
in such Currency so payable in respect of the Registered Securities as to which the Holders of Registered Securities denominated
in any Currency shall have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred
to in paragraph (b) above has been provided for pursuant to Section 3.01 and if at least one Holder has made such election, then,
unless otherwise specified pursuant to Section 3.01, on the second Business Day preceding such payment date the Company shall deliver
to the Trustee for such series of Registered Securities an Exchange Rate Officer’s Certificate in respect of the Dollar or
Foreign Currency or Currencies payments to be made on such payment date. Unless otherwise specified pursuant to Section 3.01, the
Dollar or Foreign Currency or Currencies amount receivable by Holders of Registered Securities who have elected payment in a Currency
as provided in paragraph (b) above shall be determined by the Company on the basis of the applicable Market Exchange Rate in effect
on the second Business Day (the “Valuation Date”) immediately preceding each payment date, and such determination
shall be conclusive and binding for all purposes, absent manifest error.
(d) If
a Conversion Event occurs with respect to a Foreign Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with respect to each date for the payment of principal
of (and premium, if any) and interest, if any on the applicable Securities denominated or payable in such Foreign Currency occurring
after the last date on which such Foreign Currency was used (the “Conversion Date”), the Dollar shall be the
currency of payment for use on each such payment date. Unless otherwise specified pursuant to Section 3.01, the Dollar amount to
be paid by the Company to the Trustee of each such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless
otherwise specified pursuant to Section 3.01, if the Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a Conversion Event occurs with respect to such elected Currency,
such Holder shall receive payment in the Currency in which payment would have been made in the absence of such election; and if
a Conversion Event occurs with respect to the Currency in which payment would have been made in the absence of such election, such
Holder shall receive payment in Dollars as provided in paragraph (d) of this Section 3.12.
(f) The
“Dollar Equivalent of the Foreign Currency” shall be determined by the Exchange Rate Agent and shall be obtained
for each subsequent payment date by converting the specified Foreign Currency into Dollars at the Market Exchange Rate on the Conversion
Date.
(g) The
“Dollar Equivalent of the Currency Unit” shall be determined by the Exchange Rate Agent and subject to the provisions
of paragraph (h) below shall be the sum of each amount obtained by converting the Specified Amount of each Component Currency into
Dollars at the Market Exchange Rate for such Component Currency on the Valuation Date with respect to each payment.
(h) For
purposes of this Section 3.12, the following terms shall have the following meanings:
A “Component Currency”
shall mean any currency which, on the Conversion Date, was a component currency of the relevant currency unit.
A “Specified Amount”
of a Component Currency shall mean the number of units of such Component Currency or fractions thereof which were represented in
the relevant currency unit on the Conversion Date. If, after the Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component Currencies are consolidated into a single currency, the
respective Specified Amounts of such Component Currencies shall be replaced by an amount in such single currency equal to the sum
of the respective Specified Amounts of such consolidated Component Currencies expressed in such single currency, and such amount
shall thereafter be a Specified Amount and such single currency shall thereafter be a Component Currency. If after the Conversion
Date any Component Currency shall be divided into two or more currencies, the Specified Amount of such Component Currency shall
be replaced by amounts of such two or more currencies, having an aggregate Dollar Equivalent value at the Market Exchange Rate
on the date of such replacement equal to the Dollar Equivalent of the Specified Amount of such former Component Currency at the
Market Exchange Rate immediately before such division, and such amounts shall thereafter be Specified Amounts and such currencies
shall thereafter be Component Currencies. If, after the Conversion Date of the relevant currency unit, a Conversion Event (other
than any event referred to above in this definition of “Specified Amount”) occurs with respect to any Component
Currency of such currency unit and is continuing on the applicable Valuation Date, the Specified Amount of such Component Currency
shall, for purposes of calculating the Dollar Equivalent of the Currency Unit, be converted into Dollars at the Market Exchange
Rate in effect on the Conversion Date of such Component Currency.
An “Election Date” shall
mean the Regular Record Date for the applicable series of Registered Securities or at least 16 days prior to Maturity, as the case
may be, or such other prior date for any series of Registered Securities as specified pursuant to clause (xiii) of Section 3.01
by which the written election referred to in Section 3.12(b) may be made.
All decisions and determinations of the
Exchange Rate Agent regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent of the Currency Unit, the Market
Exchange Rate and changes in the Specified Amounts as specified above shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive for all purposes and irrevocably binding upon the Company, the Trustee for the appropriate series
of Securities and all Holders of such Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee for the appropriate series of Securities of any such decision or determination.
In the event that the Company determines
in good faith that a Conversion Event has occurred with respect to a Foreign Currency, the Company shall immediately give written
notice thereof and of the applicable Conversion Date to the Trustee of the appropriate series of Securities and to the Exchange
Rate Agent (and such Trustee shall promptly thereafter give notice in the manner provided in Section 1.06 to the affected Holders)
specifying the Conversion Date. In the event the Company so determines that a Conversion Event has occurred with respect to the
Euro or any other currency unit in which Securities are denominated or payable, the Company shall immediately give written notice
thereof to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent (and such Trustee shall promptly
thereafter give notice in the manner provided in Section 1.06 to the affected Holders) specifying the Conversion Date and the Specified
Amount of each Component Currency on the Conversion Date. In the event the Company determines in good faith that any subsequent
change in any Component Currency as set forth in the definition of Specified Amount above has occurred, the Company shall similarly
give written notice to the Trustee of the appropriate series of Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of
Securities shall be fully justified and protected in conclusively relying and acting upon information received by it from the Company
and the Exchange Rate Agent and shall not otherwise have any duty or obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
Section 3.13. Appointment
and Resignation of Successor Exchange Rate Agent.
(a) Unless
otherwise specified pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a Foreign Currency
or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of this Indenture, then the
Company shall maintain with respect to each such series of Securities, or as so required, at least one Exchange Rate Agent. The
Company shall cause the Exchange Rate Agent to make the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 3.01 for the purpose of determining the applicable rate of exchange and, if applicable, for the purpose
of converting the issued Foreign Currency into the applicable payment Currency for the payment of principal (and premium, if any)
and interest, if any, pursuant to Section 3.12.
(b) No
resignation of the Exchange Rate Agent and no appointment of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate Agent as evidenced by a written instrument delivered
to the Company and the Trustee of the appropriate series of Securities accepting such appointment executed by the successor Exchange
Rate Agent.
(c) If
the Exchange Rate Agent shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more series, the Company, by or pursuant to a Board
Resolution, shall promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to the Securities of that
or those series (it being understood that any such successor Exchange Rate Agent may be appointed with respect to the Securities
of one or more or all of such series and that, unless otherwise specified pursuant to Section 3.01, at any time there shall only
be one Exchange Rate Agent with respect to the Securities of any particular series that are originally issued by the Company on
the same date and that are initially denominated and/or payable in the same Currency).
Section 3.14. CUSIP
Numbers.
In issuing the Securities the Company may
use CUSIP numbers, and, if so, the Trustee shall indicate the respective CUSIP numbers of the Securities in notices of redemption
as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed
only on the other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect
in or omission of such numbers. The Company shall advise the Trustee as promptly as practicable in writing of any change in the
CUSIP numbers.
ARTICLE
Four
SATISFACTION
AND DISCHARGE
Section 4.01. Satisfaction
and Discharge of Indenture.
Except as set forth below, this Indenture
shall upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company Request
(except as to any surviving rights of registration of transfer or exchange of Securities of such series expressly provided for
herein or pursuant hereto, any surviving rights of tender for repayment at the option of the Holders and any right to receive Additional
Amounts, as provided in Section 10.04), and the Trustee, upon receipt of a Company Order and at the expense of the Company, shall
execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when
(a) either
(i) all
Securities of such series theretofore authenticated and delivered have been delivered to the Trustee for cancellation; or
(ii) all
Securities of such series
(1) have
become due and payable,
(2) will
become due and payable at their Stated Maturity within one year, or
(3) if
redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i) or (ii) above,
has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for such purpose, solely for the benefit
of the Holders, an amount in the Currency in which the Securities of such series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the Trustee for cancellation, for principal (and premium, if
any) and interest, if any, to the date of such deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(b) the
Company has irrevocably paid or caused to be irrevocably paid all other sums payable hereunder by the Company; and
(c) the
Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied
with.
Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee under Section 6.06, the obligations of the Company to
any Authenticating Agent under Section 6.12 and, if money shall have been deposited with the Trustee pursuant to subclause (ii)
of clause (a) of this Section, the obligations of the Trustee under Section 4.02 and the last paragraph of Section 10.03 shall
survive any termination of this Indenture.
Section 4.02. Application
of Trust Funds.
Subject to the provisions of the last paragraph
of Section 10.03, all money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance
with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including
the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest, if any, for whose payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by law. Money so held in trust is subject to the Trustee’s
rights under Section 6.06.
ARTICLE
Five
REMEDIES
Section 5.01. Events
of Default.
“Event of Default”, wherever
used herein with respect to any particular series of Securities, means any one of the following events (whatever the reason for
such Event of Default and whether or not it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless
it is either inapplicable to a particular series or is specifically deleted or modified in or pursuant to the supplemental indenture
or a Board Resolution establishing such series of Securities or is in the form of Security for such series:
(i) default
in the payment of any interest upon any Security of that series when such interest becomes due and payable, and continuance of
such default for a period of 30 days; or
(ii) default
in the payment of the principal of (or premium, if any, on) any Security of that series when it becomes due and payable at its
Maturity, and continuance of such default for a period of five days; or
(iii) default
in the deposit of any sinking fund payment, when and as due by the terms of any Security of that series, and continuance of such
default for a period of five days; or
(iv) default
in the performance, or breach, of any covenant or agreement of the Company in this Indenture with respect to any Security of that
series (other than a covenant or agreement a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with or that has expressly been included in this Indenture solely for the benefit of a series of Securities other than that
series), and continuance of such default or breach for a period of 60 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(v) the
Company, pursuant to or within the meaning of any Bankruptcy Law:
(1) commences
a voluntary case or proceeding under any Bankruptcy Law,
(2) consents
to the commencement of any bankruptcy or insolvency case or proceeding against it, or files a petition or answer or consent seeking
reorganization or relief against it,
(3) consents
to the entry of a decree or order for relief against it in an involuntary case or proceeding,
(4) consents
to the filing of such petition or to the appointment of or taking possession by a Custodian of the Company or for all or substantially
all of its property, or
(5) makes
an assignment for the benefit of creditors, or admits in writing of its inability to pay its debts generally as they become due,
or
(6) takes
any corporate action in furtherance of any such action; or
(vi) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(1) is
for relief against the Company in an involuntary case or proceeding, or
(2) adjudges
the Company bankrupt or insolvent, or approves as properly filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company, or
(3) appoints
a Custodian of the Company or for all or substantially all of its property, or
(4) orders
the winding up or liquidation of the Company,
and the continuance of any such decree or
order for relief or any such other decree or order remains unstayed and in effect for a period of 90 consecutive days; or
(vii) if,
pursuant to Sections 18(a)(1)(c)(ii) of the Investment Company Act, on the last business day of each of 24 consecutive calendar
months, the Securities shall have an asset coverage (as such term is used in the Investment Company Act) of less than 100%, after
giving effect to exemptive relief, if any, granted to the Company by the Commission; or
(viii) any
other Event of Default provided with respect to Securities of that series.
The term “Bankruptcy Law”
means title 11, U.S. Code or any applicable federal or state bankruptcy, insolvency, reorganization or other similar law. The term
“Custodian” means any custodian, receiver, trustee, assignee, liquidator, sequestrator or other similar official
under any Bankruptcy Law.
Section 5.02. Acceleration
of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities
of any series at the time Outstanding occurs and is continuing, then and in every such case the Trustee or the Holders of not less
than 25% in principal amount of the Outstanding Securities of that series may declare the principal (or, if any Securities are
Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof)
of all the Securities of that series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by the Holders), and upon any such declaration such principal or specified portion thereof shall become immediately due
and payable.
At any time after such a declaration of
acceleration with respect to Securities of any series has been made and before a judgment or decree for payment of the money due
has been obtained by the Trustee as hereinafter provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(i) the
Company has paid or deposited with the Trustee a sum sufficient to pay in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as
provided in Sections 3.12(b), 3.12(d) and 3.12(e)):
(1) all
overdue installments of interest, if any, on all Outstanding Securities of that series,
(2) the
principal of (and premium, if any, on) all Outstanding Securities of that series that have become due otherwise than by such declaration
of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities,
(3) to
the extent that payment of such interest is lawful, interest upon overdue installments of interest at the rate or rates borne by
or provided for in such Securities, and
(4) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel; and
(ii) all
Events of Default with respect to Securities of that series, other than the nonpayment of the principal of (or premium, if any,
on) or interest on Securities of that series that have become due solely by such declaration of acceleration, have been cured or
waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
Section 5.03. Collection
of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(i) default
is made in the payment of any installment of interest on any Security of any series and such default continues for a period of
30 days, or
(ii) default
is made in the payment of the principal of (or premium, if any) any Security of any series at its Maturity and such default continues
for a period of five days,
then the Company shall, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of Securities of such series, the whole amount then due and payable on such Securities
for principal (and premium, if any) and interest, if any, with interest upon any overdue principal (and premium, if any) and, to
the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel.
If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon Securities of such series and collect the moneys adjudged or decreed to
be payable in the manner provided by law out of the property of the Company or any other obligor upon such Securities of such series,
wherever situated.
If an Event of Default with respect to Securities
of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights
of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 5.04. Trustee
May File Proofs of Claim.
In case of the pendency of any receivership,
insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or other judicial proceeding relative
to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities of any series shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment
of any overdue principal, premium or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to
file and prove a claim for the whole amount of principal (or in the case of Original Issue Discount Securities or Indexed Securities,
such portion of the principal as may be provided for in the terms thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or documents (and take such other actions, including serving
on a committee of creditors) as may be necessary or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed
in such judicial proceeding; and
(ii) to
collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder of Securities of such
series to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor
Trustee under Section 6.06.
Subject to Article Eight and Section 9.02
and unless otherwise provided as contemplated by Section 3.01, nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a Security any plan of reorganization, arrangement, adjustment
or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of
the claim of any Holder of a Security in any such proceeding.
Section 5.05. Trustee
May Enforce Claims Without Possession of Securities.
All rights of action and claims under this
Indenture or any of the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities
or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name and as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit
of the Holders of the Securities in respect of which such judgment has been recovered.
Section 5.06. Application
of Money Collected.
Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal (or premium, if any) or interest, if any, upon presentation of the Securities, and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due
the Trustee and any predecessor Trustee under Section 6.06;
SECOND: To the payment of the amounts then
due and unpaid upon any Securities for principal (and premium, if any) and interest, if any, in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities for principal (and premium, if any) and interest, if any, respectively; and
THIRD: To the payment of the remainder,
if any, to the Company or any other Person or Persons entitled thereto.
Section 5.07. Limitation
on Suits.
No Holder of any Security of any series
shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for the appointment
of a receiver or trustee, or for any other remedy hereunder, unless:
(i) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series;
(ii) the
Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(iii) such
Holder or Holders shall have offered to the Trustee reasonable indemnity, security or both against the costs, expenses and liabilities
to be incurred in compliance with such request;
(iv) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such proceeding;
and
(v) no
direction inconsistent with such written request shall have been given to the Trustee during such 60-day period by the Holders
of a majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such
Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.
Section 5.08. Unconditional
Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this
Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal
of (and premium, if any, on) and (subject to Sections 3.05 and 3.07) interest, if any, on such Security on the Stated Maturity
or Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date or, in the case of repayment at
the option of the Holders on the Repayment Date) and to institute suit for the enforcement of any such payment, and such rights
shall not be impaired without the consent of such Holder.
Section 5.09. Restoration
of Rights and Remedies.
If the Trustee or any Holder of a Security
has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company,
the Trustee and the Holders of Securities shall, subject to any determination in such proceeding, be restored severally and respectively
to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
Section 5.10. Rights
and Remedies Cumulative.
Except as otherwise provided with respect
to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right
or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities is intended to be exclusive of any other
right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of
any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
Section 5.11. Delay
or Omission Not Waiver.
No delay or omission of the Trustee or of
any Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy
or constitute a waiver of any such Event of Default or acquiescence therein. Every right and remedy given by this Article or by
law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee
or by the Holders of Securities, as the case may be.
Section 5.12. Control
by Holders of Securities.
Subject to Section 6.02(v), the Holders
of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee
with respect to the Securities of such series; provided that
(i) such
direction shall not be in conflict with any rule of law or with this Indenture,
(ii) the
Trustee may take any other action deemed proper by the Trustee that is not inconsistent with such direction, and
(iii) the
Trustee need not take any action that might involve it in personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
Section 5.13. Waiver
of Past Defaults.
Subject to Section 5.02, the Holders of
not less than a majority in principal amount of the Outstanding Securities of any series may, on behalf of the Holders of all the
Securities of such series waive any past Default hereunder with respect to the Securities of such series and its consequences,
except a default
(i) in
the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series, or
(ii) in
respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall
cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture;
but no such waiver shall extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 5.14. Waiver
of Stay or Extension Laws.
The Company covenants (to the extent that
it may lawfully do so) that it shall not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit
or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit
or advantage of any such law, and covenants that it shall not hinder, delay or impede the execution of any power herein granted
to the Trustee, but shall suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE
Six
THE
TRUSTEE
Section 6.01. Notice
of Defaults.
(a) Within
90 days after the occurrence of any Default hereunder with respect to the Securities of any series, the Trustee shall transmit
in the manner and to the extent provided in TIA Section 313(c), notice of such Default hereunder known to a Responsible Officer
of the Trustee, unless such Default shall have been cured or waived; provided, however, that, except in the case
of a Default in the payment of the principal of (or premium, if any, on) or interest, if any, on any Security of such series, or
in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be
protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interest
of the Holders of the Securities of such series; and provided, further, that, in the case of any Default or breach
of the character specified in Section 5.01(iv) with respect to the Securities of such series, no such notice to Holders shall be
given until at least 90 days after the occurrence thereof.
(b) Prior
to the time when the occurrence of an Event of Default becomes known to a Responsible Officer of the Trustee and after the curing
or waiving of all such Events of Default with respect to a series of Securities that may have occurred:
(i) the
duties and obligations of the Trustee shall with respect to the Securities of any series be determined solely by the express provisions
of this Indenture, and the Trustee shall not be liable with respect to the Securities except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) in
the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such certificates or opinions that by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they
conform on their face to the requirements of this Indenture (but need not confirm or investigate the accuracy of any mathematical
calculations or other facts stated therein); and
(iii) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers, unless
it shall be proved that the Trustee was negligent in ascertaining the pertinent facts.
Section 6.02. Certain
Rights of Trustee.
Subject to the provisions of TIA Section
315(a) through 315(d):
(i) The
Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper
or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties. The Trustee
need not investigate any fact or matter stated in any document.
(ii) Any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order (other
than delivery of any Security to the Trustee for authentication and delivery pursuant to Section 3.03, which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution.
(iii) Whenever
in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence
of bad faith on its part, conclusively rely upon a Board Resolution, an Opinion of Counsel or an Officer’s Certificate.
(iv) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(v) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities (including the reasonable fees
and expenses of its agents and counsel) which might be incurred by it in compliance with such request or direction.
(vi) The
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled upon reasonable notice
and at reasonable times during normal business hours to examine the books, records and premises of the Company, personally or by
agent or attorney.
(vii) The
Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed
with due care by it hereunder.
(viii) The
Trustee shall not deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate
Trust Office of the Trustee, and such notice references the Securities and this Indenture.
(ix) The
rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified,
are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder.
(x) The
permissive rights of the Trustee enumerated herein shall not be construed as duties.
(xi) The
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of not less than a majority in principal amount of the Outstanding Securities of a series relating to
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee under this Indenture with respect to such Securities.
(xii) Before
the Trustee acts or refrains from acting, it may require an Officer’s Certificate (unless other evidence is specifically
prescribed herein). The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such
Officer’s Certificate.
(xiii) The
Trustee shall not be liable for any action taken or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by this Indenture.
(xiv) The
Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles
of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may
be signed by any person authorized to sign an Officer’s Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(xv) Anything
in this Indenture notwithstanding, in no event shall the Trustee be liable for special, indirect, punitive or consequential loss
or damage of any kind whatsoever (including but not limited to loss of profit), even if the Trustee has been advised as to the
likelihood of such loss or damage and regardless of the form of action.
(xvi) The
Trustee shall not be responsible or liable for any failure or delay in the performance of its obligations under this Indenture
arising out of or caused, directly or indirectly, by circumstances beyond its reasonable control, including acts of God; earthquakes;
fire; flood; terrorism; wars and other military disturbances; sabotage; epidemics; riots; interruptions; loss or malfunctions of
utilities, computer (hardware or software) or communication services; accidents; labor disputes; acts of civil or military authority
and governmental action.
The Trustee shall not be required to expend
or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity
against such risk or liability is not reasonably assured to it.
Section 6.03. Not
Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, shall be taken as the statements of the Company, and neither
the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities, except that the Trustee represents that it is duly authorized
to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder and that the statements
made by it in a Statement of Eligibility on Form T-1 supplied to the Company are true and accurate, subject to the qualifications
set forth therein. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company
of Securities or the proceeds thereof, and neither the Trustee nor any Authenticating Agent shall be responsible for any statement
of the Company in any document issued in connection with the sale of the Securities.
Section 6.04. May
Hold Securities.
The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Company, in its individual or any other capacity, may become the owner
or pledgee of Securities and, subject to TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar, Authenticating Agent or such other agent.
Section 6.05. Money
Held in Trust.
Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest
on any money received by it hereunder except as otherwise agreed with the Company.
Section 6.06. Compensation
and Reimbursement and Indemnification of Trustee.
The Company agrees:
(i) To
pay to the Trustee or any predecessor Trustee from time to time such reasonable compensation for all services rendered by it hereunder
as has been agreed upon from time to time in writing (which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust).
(ii) Except
as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee or any predecessor Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except
any such expense, disbursement or advance as may be attributable to its negligence or bad faith.
(iii) To
indemnify each of the Trustee or any predecessor Trustee for, and to hold it harmless against, any loss, liability or expense incurred
without negligence or bad faith on its own part, arising out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses (including the reasonable fees and expenses of its agents and counsel) of
defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations
of the Company under this Section, the Trustee shall have a claim prior to the Securities upon all property and funds held or collected
by the Trustee as such, except funds held in trust for the payment of principal of (or premium, if any, on) or interest, if any,
on particular Securities.
When the Trustee incurs expenses or renders
services after an Event of Default specified in Section 5.01 occurs, the expenses and compensation for such services are intended
to constitute expenses of administration under Title 11, U.S. Code, or any similar Federal, State or analogous foreign law for
the relief of debtors.
The provisions of this Section 6.06 shall
survive the resignation or removal of the Trustee and the satisfaction, termination or discharge of this Indenture.
Section 6.07. Corporate
Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder
that shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of federal,
state, territorial or the District of Columbia supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
Section 6.08. Disqualification;
Conflicting Interests.
If the Trustee has or shall acquire a conflicting
interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 6.09. Resignation
and Removal; Appointment of Successor.
(a) No
resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.10 and
any and all amounts then due and owing to the Trustee hereunder have been paid in full.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company.
(c) The
Trustee may be removed at any time with respect to the Securities of any series by (i) the Company, by an Officer’s Certificate
delivered to the Trustee; provided, that, contemporaneously therewith, (x) the Company immediately appoints a successor
Trustee with respect to the Securities of such series meeting the requirements of Section 6.07 hereof and (y) the terms of Section
6.10 hereof are complied with in respect of such appointment (the Trustee being removed hereby agreeing to execute the instrument
contemplated by Section 6.10(b) hereof, if applicable, under such circumstances); and provided, further, that no
Default with respect to such Securities shall have occurred and then be continuing at such time, or (ii) Act of the Holders of
a majority in principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.
(d) If
at any time:
(i) the
Trustee shall fail to comply with the provisions of TIA Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(ii) the
Trustee shall cease to be eligible under Section 6.07 and shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(iii) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a
Board Resolution may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA
Section 315(e), any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If
an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving
of a notice of resignation or the delivery of an Act of removal, the Trustee resigning or being removed may petition any court
of competent jurisdiction for the appointment of a successor Trustee.
(f) If
the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any
cause with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint
a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be
only one Trustee with respect to the Securities of any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and
the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment, become the successor
Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company.
If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders
of Securities and accepted appointment in the manner hereinafter provided, any Holder of a Security who has been a bona fide Holder
of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
(g) The
Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and
each appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the
Holders of Securities in Section 1.06.
Each notice shall include the name of the successor Trustee
with respect to the Securities of such series and the address of its Corporate Trust Office.
Section 6.10. Acceptance
of Appointment by Successor.
(a) In
case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee. However, on request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 6.06.
(b) In
case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and
deliver an indenture supplemental hereto wherein each successor Trustee shall accept such appointment and that (i) shall contain
such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights,
powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, (ii) shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (iii) shall add to or change
any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder
by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee. Upon the execution and delivery of such supplemental indenture
the resignation or removal of the retiring Trustee shall become effective to the extent provided therein, and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
However, on request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates, subject nevertheless to its claim, if any, as provided for in
Section 6.06. Whenever there is a successor Trustee with respect to one or more (but less than all) series of securities issued
pursuant to this Indenture, the terms “Indenture” and “Securities” shall have the meanings
specified in the provisos to the respective definitions of those terms in Section 1.01 which contemplate such situation.
(c) Upon
request of any such successor Trustee, the Company shall execute any and all instruments reasonably necessary to more fully and
certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or
(b) of this Section, as the case may be.
(d) No
successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified
and eligible under this Article.
Section 6.11. Merger,
Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may
be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible
under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In
case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with
the same effect as if such successor Trustee had itself authenticated such Securities. In case any Securities shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities, in either its
own name or that of its predecessor Trustee, with the full force and effect which this Indenture provides for the certificate of
authentication of the Trustee; provided, however, that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Securities in the name of any predecessor Trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
Section 6.12. Appointment
of Authenticating Agent.
At any time when any of the Securities remain
Outstanding, the Trustee may appoint an Authenticating Agent or Agents (which may be an Affiliate or Affiliates of the Company)
with respect to one or more series of Securities that shall be authorized to act on behalf of the Trustee to authenticate Securities
of such series issued upon original issue or upon exchange, registration of transfer or partial redemption thereof, and Securities
so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing signed by a Responsible Officer of
the Trustee, a copy of which instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture
to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and, except as may otherwise be provided pursuant to Section 3.01, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the United States or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000 and subject
to supervision or examination by Federal or State authorities. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then, for the purposes of this
Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating
Agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent; provided such corporation
shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the
Trustee or the Authenticating Agent.
An Authenticating Agent for any series of
Securities may at any time resign by giving written notice of resignation to the Trustee for such series and to the Company. The
Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section,
the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall promptly
give written notice of such appointment to all Holders of Securities of the series with respect to which such Authenticating Agent
shall serve in the manner set forth in Section 1.06. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent herein. No successor Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay to each Authenticating
Agent from time to time reasonable compensation including reimbursement of its reasonable expenses for its services under this
Section.
If an appointment with respect to one or
more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu
of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the following
form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
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American Stock Transfer & Trust Company, LLC, Trustee |
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By: |
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as Authenticating Agent |
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Authorized Officer |
If all of the Securities of a series may
not be originally issued at one time, and the Trustee does not have an office capable of authenticating Securities upon original
issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance,
the Trustee, if so requested by the Company in writing (which writing need not comply with Section 1.02 and need not be accompanied
by an Opinion of Counsel), shall appoint in accordance with this Section an Authenticating Agent (which, if so requested by the
Company, shall be an Affiliate of the Company) having an office in a Place of Payment designated by the Company with respect to
such series of Securities; provided that the terms and conditions of such appointment are reasonably acceptable to the Trustee.
ARTICLE
Seven
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.01. Disclosure
of Names and Addresses of Holders.
Every Holder of Securities, by receiving
and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent
nor any Paying Agent nor any Security Registrar nor any agent of any of them shall be held accountable by reason of the disclosure
of any information as to the names and addresses of the Holders of Securities in accordance with TIA Section 312, regardless of
the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under TIA Section 312(b).
Section 7.02. Preservation
of Information; Communications to Holders.
(a) The
Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt
of a new list so furnished.
(b) The
rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities,
and the corresponding rights and duties of the Trustee, shall be as provided by the Trust Indenture Act.
(c) Every
Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of any disclosure of information as to names and addresses
of Holders made pursuant to the Trust Indenture Act.
Section 7.03. Reports
by Trustee.
Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant to this Indenture, the Trustee shall transmit
by mail to all Holders of Securities as provided in TIA Section 313(c) a report dated as of such May 15 which meets the requirements
of TIA Section 313(a).
A copy of each such report shall, at the
time of such transmission to Holders, be filed by the Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Company. The Company shall promptly notify the Trustee of the listing of the Securities on any
stock exchange. In the event that, on any such reporting date, no events have occurred under the applicable sections of the TIA
within the 12 months preceding such reporting date, the Trustee shall be under no duty or obligation to provide such reports.
Section 7.04. Reports
by Company.
The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may
be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant to the Trust Indenture Act; provided
that any such information, documents or reports filed electronically with the Commission pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended, shall be deemed filed with and delivered to the Trustee and the Holders at the same
time as filed with the Commission.
Delivery of such reports, information, and
documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein or determinable from information contained therein, including the Company’s compliance
with any of its covenants hereunder (as to which the Trustee is entitled to conclusively rely exclusively on Officer’s Certificates).
Section 7.05. Calculation
of Original Issue Discount.
Upon request of the Trustee, the Company
shall file with the Trustee promptly at the end of each calendar year a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on Outstanding Securities as of the end of such year.
ARTICLE
Eight
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 8.01. Company
May Consolidate, Etc., Only on Certain Terms.
Unless otherwise provided in the terms of
such Securities, the Company shall not consolidate with or merge with or into any other corporation or convey or transfer all or
substantially all of its properties and assets to any Person, unless:
(i) either
the Company shall be the continuing corporation, or the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or transfer all or substantially all of the properties
and assets of the Company shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in
form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Securities and the performance of every covenant of this Indenture on the part of the Company to be performed
or observed;
(ii) immediately
after giving effect to such transaction, no Default or Event of Default shall have happened and be continuing; and
(iii) the
Company and the successor Person have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been complied with.
Section 8.02. Successor
Person Substituted.
Upon any consolidation or merger, or any
conveyance or transfer of the properties and assets of the Company substantially as an entirety in accordance with Section 8.01,
the successor corporation formed by such consolidation or into which the Company is merged or the successor Person to which such
conveyance or transfer is made shall succeed to, and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor had been named as the Company herein. In the event of any such conveyance
or transfer, the Company shall be discharged from all obligations and covenants under this Indenture and the Securities and may
be dissolved and liquidated.
ARTICLE
Nine
SUPPLEMENTAL INDENTURES
Section 9.01. Supplemental
Indentures Without Consent of Holders.
Without the consent of any Holders of Securities,
the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental hereto, in form reasonably satisfactory to the Trustee, for any of the following purposes:
(i) to
evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(ii) to
add to the covenants of the Company for the benefit of the Holders of all or any series of Securities (and if such covenants are
to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for
the benefit of such series) or to surrender any right or power herein conferred upon the Company; or
(iii) to
add any additional Events of Default for the benefit of the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included
solely for the benefit of such series); provided, however, that in respect of any such additional Events of Default
such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than
that allowed in the case of other defaults) or may provide for an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate principal amount of
that or those series of Securities to which such additional Events of Default apply to waive such default; or
(iv) to
change or eliminate any of the provisions of this Indenture; provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the execution of such supplemental indenture that is
entitled to the benefit of such provision; or
(v) to
secure the Securities pursuant to the requirements of Section 8.01 or otherwise; or
(vi) to
establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01, including the provisions and procedures
relating to Securities convertible into or exchangeable for any securities of any Person (including the Company); or
(vii) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee; or
(viii) to
cure any ambiguity, to correct or supplement any provision herein that may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action
shall not adversely affect the interests of the Holders of Securities of any series in any material respect; or
(ix) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance
and discharge of any series of Securities pursuant to Sections 4.01, 14.02 and 14.03; provided that any such action shall
not adversely affect the interests of the Holders of Securities of such series or any other series of Securities in any material
respect.
Section 9.02. Supplemental
Indentures with Consent of Holders.
With the consent of the Holders of not less
than a majority in aggregate principal amount of all Outstanding Securities affected by such supplemental indenture, by Act of
said Holders delivered to the Company and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the
Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture that affects such series of Securities or of modifying in any
manner the rights of the Holders of such series of Securities under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby:
(i) change
the Stated Maturity of the principal of (or premium, if any) or any installment of principal of or interest on, any Security, subject
to the provisions of Section 3.08; or the terms of any sinking fund with respect to any Security; or reduce the principal amount
thereof or the rate of interest (or change the manner of calculating the rate of interest, thereon, or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant to Section 10.04 (except as
contemplated by Section 8.01(i) and permitted by Section 9.01(i)), or reduce the portion of the principal of an Original Issue
Discount Security or Indexed Security that would be due and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 5.02, or upon the redemption thereof or the amount thereof provable in bankruptcy pursuant to Section 5.04,
or adversely affect any right of repayment at the option of the Holder of any Security, or change any Place of Payment where, or
the Currency in which, any Security or any premium or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment at the option
of the Holder, on or after the Redemption Date or the Repayment Date, as the case may be), or adversely affect any right to convert
or exchange any Security as may be provided pursuant to Section 3.01 herein; or
(ii) reduce
the percentage in principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required for any waiver with respect to such series (of compliance
with certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture,
or reduce the requirements of Section 15.04 for quorum or voting; or
(iii) modify
any of the provisions of this Section, Section 5.13 or Section 10.07, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security
affected thereby; provided, however, that this clause shall not be deemed to require the consent of any Holder of
a Security with respect to changes in the references to “the Trustee” and concomitant changes in this Section, or the
deletion of this proviso, in accordance with the requirements of Sections 6.10(b) and 9.01(vii).
It shall not be necessary for any Act of
Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.
A supplemental indenture that changes or
eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or
more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such
covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any
other series.
The Company may, but shall not be obligated
to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a
record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled
to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that
unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date that
is eleven months after such record date, any such consent previously given shall automatically and without further action by any
Holder be cancelled and of no further effect.
Section 9.03. Execution
of Supplemental Indentures.
In executing, or accepting the additional
trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this
Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, in addition to the documents
required by Section 1.02 of this Indenture, an Officer’s Certificate and an Opinion of Counsel stating that the execution
of such supplemental indenture is authorized or permitted by this Indenture and that all conditions precedent to such supplemental
indenture have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 9.04. Effect
of Supplemental Indentures.
Upon the execution of any supplemental indenture
under this Article, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part
of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 9.05. Conformity
with Trust Indenture Act.
Every supplemental indenture executed pursuant
to this Article shall conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.06. Reference
in Securities to Supplemental Indentures.
Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such
supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE
Ten
COVENANTS
Section 10.01. Payment
of Principal, Premium, if any, and Interest.
The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium, if any,
on) and interest, if any, on the Securities of that series in accordance with the terms of such series of Securities and this Indenture.
Unless otherwise specified with respect to Securities of any series pursuant to Section 3.01, at the option of the Company, all
payments of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security.
Section 10.02. Existence;
Maintenance of Office or Agency.
Except as otherwise permitted in Article
Eight, the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect its existence
as a corporation or other Person. The Company shall also maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where Securities of that series that are convertible or exchangeable may be surrendered
for conversion or exchange, as applicable, and where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company shall give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency. If at any time the Company shall fail to maintain any such required
office or agency in respect of any series of Securities or shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints
the Trustee as its agent to receive such respective presentations, surrenders, notices and demands, and the Company hereby appoints
the Trustee at its Corporate Trust Office its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate
one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all
of such purposes, and may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location of any such other office or agency. Unless otherwise
specified with respect to any Securities pursuant to Section 3.01 with respect to a series of Securities, the Company hereby designates
as a Place of Payment for each series of Securities the office or agency of the Company in the Borough of Manhattan, The City of
New York, and initially appoints the Trustee as Paying Agent with its office at 6201 15th Avenue, Brooklyn, New York
11219, and as its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect
to any Securities pursuant to Section 3.01, if and so long as the Securities of any series (i) are denominated in a currency other
than Dollars or (ii) may be payable in a currency other than Dollars, or so long as it is required under any other provision of
the Indenture, then the Company will maintain with respect to each such series of Securities, or as so required, at least one Exchange
Rate Agent. The Company will notify the Trustee of the name and address of any Exchange Rate Agent retained by it.
Section 10.03. Money
for Securities Payments to Be Held in Trust.
If the Company shall at any time act as
its own Paying Agent with respect to any series of any Securities, it will, on or before each due date of the principal of (or
premium, if any) or interest, if any, on any of the Securities of that series, segregate and hold in trust for the benefit of the
Persons entitled thereto a sum in the Currency in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d)
and 3.12(e)) sufficient to pay the principal of (and premium, if any, on) and interest, if any, on Securities of such series so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify
the Trustee of its action or failure so to act.
Whenever the Company shall have one or more
Paying Agents for any series of Securities, it will, on or before each due date of the principal of (or premium, if any, on) or
interest, if any, on any Securities of that series, deposit with a Paying Agent a sum (in the Currency or Currencies described
in the preceding paragraph) sufficient to pay the principal (or premium, if any) or interest, if any, so becoming due, such sum
of money to be held in trust for the benefit of the Persons entitled to such principal, premium or interest and (unless such Paying
Agent is the Trustee) the Company shall promptly notify the Trustee of its action or failure so to act.
The Company may at any time, for the purpose
of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums of money held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any
Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities
of any series, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment
of the principal of (or premium, if any, on) or interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall be paid to the Company upon Company Request, or
(if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect
to such money held in trust, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause
to be published once, in an Authorized Newspaper, notice that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will
be repaid to the Company.
Section 10.04. Additional
Amounts.
If the Securities of a series provide for
the payment of Additional Amounts, the Company shall pay to the Holder of any Security of such series such Additional Amounts as
may be specified as contemplated by Section 3.01. Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of (or premium, if any, on) or interest, if any, on any Security of any series or the net proceeds received on the
sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts
provided for by the terms of such series established pursuant to Section 3.01 to the extent that, in such context, Additional Amounts
are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts
(if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated
by Section 3.01, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first
Interest Payment Date with respect to that series of Securities (or if the Securities of that series shall not bear interest prior
to Maturity, the first day on which a payment of principal premium is made), and at least 10 days prior to each date of payment
of principal, premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s
Certificate, the Company shall furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment
of principal, premium or interest on the Securities of that series shall be made to Holders of Securities of that series who are
not United States persons without withholding for or on account of any tax, assessment or other governmental charge described in
the Securities of that series. If any such withholding shall be required, then such Officer’s Certificate shall specify by
country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series and the Company
shall pay to the Trustee or such Paying Agent the Additional Amounts required by the terms of such Securities. In the event that
the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned certificate, then the Trustee or
such Paying Agent shall be entitled (i) to assume that no such withholding or deduction is required with respect to any payment
of principal or interest with respect to any Securities of a series until it shall have received a certificate advising otherwise
and (ii) to make all payments of principal and interest with respect to the Securities of a series without withholding or deductions
until otherwise advised. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against,
any loss, liability or expense reasonably incurred without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section
or in reliance on the Company’s not furnishing such an Officer’s Certificate.
Section 10.05. Statement
as to Compliance.
The Company shall deliver to the Trustee,
within 120 days after the end of each fiscal year ending after the date hereof so long as any Security is Outstanding hereunder,
an Officer’s Certificate stating to the knowledge of the signer thereof whether the Company is in default in the performance
of any of the terms, provisions or conditions of this Indenture. For purposes of this Section 10.05, such default shall be determined
without regard to any period of grace or requirement of notice under this Indenture.
Section 10.06. Payment
of Taxes and Other Claims.
The Company shall pay or discharge or cause
to be paid or discharged, before the same shall become delinquent, (1) all taxes, assessments and governmental charges levied or
imposed upon the Company or upon the income, profits or property of the Company, and (2) all lawful claims for labor, materials
and supplies that, if unpaid, might by law become a lien upon the property of the Company, except where the failure to do so would
not be reasonably expected to have a material adverse effect on the business, assets, financial condition or results of operations
of the Company; provided, however, that the Company shall not be required to pay or discharge or cause to be paid
or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith
by appropriate proceedings.
Section 10.07. Waiver
of Certain Covenants.
The Company may omit in any particular instance
to comply with any covenant or condition set forth in Section 10.06, and, as specified pursuant to Section 3.01(xv) for Securities
of any series, in any covenants of the Company added to Article Ten pursuant to Section 3.01(xiv) or Section 3.01(xv) in connection
with the Securities of a series, if before or after the time for such compliance the Holders of at least a majority in aggregate
principal amount of all Outstanding Securities of such series, by Act of such Holders, either waive such compliance in such instance
or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition
except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE
Eleven
REDEMPTION OF SECURITIES
Section 11.01. Applicability
of Article.
Securities of any series that are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated
by Section 3.01 for Securities of any series) in accordance with this Article.
Section 11.02. Election
to Redeem; Notice to Trustee.
The election of the Company to redeem any
Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of the Company of
less than all of the Securities of any series, the Company shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee in writing of such Redemption Date and of the
principal amount of Securities of such series to be redeemed, and, if applicable, of the tenor of the Securities to be redeemed,
and shall deliver to the Trustee such documentation and records as shall enable the Trustee to select the Securities to be redeemed
pursuant to Section 11.03. In the case of any redemption of Securities of any series prior to the expiration of any restriction
on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee
with an Officer’s Certificate evidencing compliance with such restriction.
Section 11.03. Selection
by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series
issued on the same day with the same terms are to be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued on such date with
the same terms not previously called for redemption, by such method as the Trustee shall deem fair and appropriate; provided
that such method complies with the rules of any national securities exchange or quotation system on which the Securities are listed
(which rules shall be certificated to the Trustee by the Company or such national securities exchange at the Trustee’s request),
and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that
series or any integral multiple thereof) of the principal amount of Securities of such series of a denomination larger than the
minimum authorized denomination for Securities of that series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Security not redeemed to less than the minimum authorized denomination for
Securities of such series.
The Trustee shall promptly notify the Company
and the Security Registrar (if other than itself) in writing of the Securities selected for redemption and, in the case of any
Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Security
redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which has been or is to be redeemed.
Section 11.04. Notice
of Redemption.
Notice of redemption shall be given in the
manner provided in Section 1.06, not less than 30 days nor more than 60 days prior to the Redemption Date, unless a shorter period
is specified by the terms of such series established pursuant to Section 3.01, to each Holder of Securities to be redeemed; provided
that failure to give such notice in the manner herein provided to the Holder of any Security designated for redemption as a whole
or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption
of any other such Security or portion thereof.
Any notice that is mailed to the Holders
of Registered Securities in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the
Holder receives the notice.
All notices of redemption shall state:
(i) the
Redemption Date;
(ii) the
Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section 11.06;
(iii) if
less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be redeemed;
(iv) in
case any Security is to be redeemed in part only, the notice that relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder will receive, without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(v) that
on the Redemption Date, the Redemption Price and accrued interest, if any, to the Redemption Date payable as provided in Section
11.06 will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date;
(vi) the
Place or Places of Payment where such Securities, if any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any;
(vii) that
the redemption is for a sinking fund, if such is the case; and
(viii) the
CUSIP number of such Security, if any.
A notice of redemption published as contemplated
by Section 1.06 need not identify particular Registered Securities to be redeemed. Notice of redemption of Securities to be redeemed
shall be given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of the Company.
Section 11.05. Deposit
of Redemption Price.
On or prior to 10:00 a.m., New York City
time, on the Business Day prior to any Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, in accordance with the terms of this Indenture, segregate and hold in trust as
provided in Section 10.03) an amount of money in the Currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b),
3.12(d) and 3.12(e)) sufficient to pay on the Redemption Date the Redemption Price of, and (unless otherwise specified pursuant
to Section 3.01) accrued interest on, all the Securities or portions thereof which are to be redeemed on that date.
Section 11.06. Securities
Payable on Redemption Date.
Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein
specified in the Currency in which the Securities of such series are payable (except as otherwise specified pursuant to Section
3.01 for the Securities of such series and except, if applicable, as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) (together
with accrued interest, if any, to the Redemption Date), and from and after such date (unless the Company shall default in the payment
of the Redemption Price and accrued interest, if any) such Securities shall if the same were interest-bearing cease to bear interest.
Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at
the Redemption Price, together with accrued interest, if any, to the Redemption Date; provided, however, that, unless
otherwise specified as contemplated by Section 3.01, installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall
not be so paid upon surrender thereof for redemption, the Redemption Price shall, until paid, bear interest from the Redemption
Date at the rate of interest set forth in such Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
Section 11.07. Securities
Redeemed in Part.
Any Registered Security that is to be redeemed
only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or such Holder’s attorney duly authorized in writing),
and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge
a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
If a temporary global Security or permanent global Security is so surrendered, such new Security so issued shall be a new temporary
global Security or permanent global Security, respectively. However, if less than all the Securities of any series with differing
issue dates, interest rates and stated maturities are to be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at least 45 days prior to the relevant redemption date.
ARTICLE
Twelve
SINKING FUNDS
Section 12.01. Applicability
of Article.
The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series except as otherwise specified as contemplated by Section
3.01 for Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,”
and any payment in excess of such minimum amount provided for by the terms of such Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of any Securities of any series, the cash amount
of any mandatory sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall
be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
Section 12.02. Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all
or any part of any mandatory sinking fund payment with respect to the Securities of a series, (i) deliver Outstanding Securities
of such series (other than any previously called for redemption) and (ii) apply as a credit Securities of such series which have
been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted
optional sinking fund payments pursuant to the terms of such Securities, as provided for by the terms of such Securities; provided
that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through
operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
Section 12.03. Redemption
of Securities for Sinking Fund.
Not less than 60 days prior to each sinking
fund payment date for Securities of any series, the Company shall deliver to the Trustee an Officer’s Certificate specifying
the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable, as provided
in Sections 3.12(b), 3.12(d) and 3.12(e)) and the portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 12.02, and the optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and shall also deliver to the Trustee any Securities to be so delivered and credited. If such Officer’s
Certificate specifies an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the
Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided
in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 11.06 and 11.07.
ARTICLE
Thirteen
REPAYMENT AT THE OPTION OF HOLDERS
Section 13.01. Applicability
of Article.
Repayment of Securities of any series before
their Stated Maturity at the option of Holders thereof shall be made in accordance with the terms of such Securities and (except
as otherwise specified by the terms of such series established pursuant to Section 3.01) in accordance with this Article.
Section 13.02. Repayment
of Securities.
Securities of any series subject to repayment
in whole or in part at the option of the Holders thereof will, unless otherwise provided in the terms of such Securities, be repaid
at the Repayment Price thereof, together with interest, if any, thereon accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that on or before 10:00 a.m., New York City time, on the Business Day preceding
the Repayment Date it shall deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying Agent,
segregate and hold in trust as provided in Section 10.03) an amount of money in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series and except, if applicable,
as provided in Sections 3.12(b), 3.12(d) and 3.12(e)) sufficient to pay the Repayment Price of, and (unless otherwise specified
pursuant to Section 3.01) accrued interest on, all the Securities or portions thereof, as the case may be, to be repaid on such
date.
Section 13.03. Exercise
of Option.
Securities of any series subject to repayment
at the option of the Holders thereof shall contain an “Option to Elect Repayment” form on the reverse of such Securities.
To be repaid at the option of the Holder, any Security so providing for such repayment, with the “Option to Elect Repayment”
form on the reverse of such Security duly completed by the Holder (or by the Holder’s attorney duly authorized in writing),
must be received by the Company at the Place of Payment therefor specified in the terms of such Security (or at such other place
or places of which the Company shall from time to time notify the Holders of such Securities) not earlier than 45 days nor later
than 30 days prior to the Repayment Date. If less than the entire Repayment Price of such Security is to be repaid in accordance
with the terms of such Security, the portion of the Repayment Price of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or denominations of the Security or Securities to be issued to
the Holder for the portion of such Security surrendered that is not to be repaid, must be specified. Any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if, following such repayment, the unpaid principal amount
of such Security would be less than the minimum authorized denomination of Securities of the series of which such Security to be
repaid is a part. Except as otherwise may be provided by the terms of any Security providing for repayment at the option of the
Holder thereof, exercise of the repayment option by the Holder shall be irrevocable unless waived by the Company.
Section 13.04. When
Securities Presented for Repayment Become Due and Payable.
If Securities of any series providing for
repayment at the option of the Holders thereof shall have been surrendered as provided in this Article and as provided by or pursuant
to the terms of such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein specified, and on and after such Repayment Date (unless
the Company shall default in the payment of such Securities on such Repayment Date) such Securities shall, if the same were interest-bearing,
cease to bear interest. Upon surrender of any such Security for repayment in accordance with such provisions , the Repayment Price
of such Security so to be repaid shall be paid by the Company, together with accrued interest, if any, to the Repayment Date; provided,
however, that installments of interest on Registered Securities, whose Stated Maturity is prior to (or, if specified pursuant
to Section 3.01, on) the Repayment Date shall be payable (but without interest thereon, unless the Company shall default in the
payment thereof) to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business
on the relevant Record Dates according to their terms and the provisions of Section 3.07.
If any Security surrendered for repayment
shall not be so repaid upon surrender thereof, the Repayment Price shall, until paid, bear interest from the Repayment Date at
the rate of interest set forth in such Security or, in the case of an Original Issue Discount Security, at the Yield to Maturity
of such Security.
Section 13.05. Securities
Repaid in Part.
Upon surrender of any Registered Security
that is to be repaid in part only, the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new Registered Security or Securities of the same series,
and of like tenor, of any authorized denomination specified by the Holder, in an aggregate principal amount equal to and in exchange
for the portion of the principal of such Security so surrendered that is not to be repaid. If a temporary global Security or permanent
global Security is so surrendered, such new Security so issued shall be a new temporary global Security or a new permanent global
Security, respectively.
ARTICLE
Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.01. Applicability
of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
If pursuant to Section 3.01 provision is
made for either or both of (a) defeasance of the Securities of or within a series under Section 14.02 or (b) covenant defeasance
of the Securities of or within a series under Section 14.03, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such modifications thereto as may be specified pursuant to Section 3.01
with respect to any Securities), shall be applicable to such Securities, and the Company may at its option by Board Resolution,
at any time, with respect to such Securities, elect to have either Section 14.02 (if applicable) or Section 14.03 (if applicable)
be applied to such Outstanding Securities upon compliance with the conditions set forth below in this Article.
Section 14.02. Defeasance
and Discharge.
Upon the Company’s exercise of the
above option applicable to this Section with respect to any Securities of or within a series, the Company shall be deemed to have
been discharged from its obligations with respect to such Outstanding Securities on and after the date the conditions set forth
in Section 14.04 are satisfied (hereinafter, “defeasance”). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 14.05 and the other Sections of this Indenture
referred to in clauses (A) and (B) of this Section, and to have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until otherwise terminated or discharged hereunder: (A) the
rights of Holders of such Outstanding Securities to receive, solely from the trust fund described in Section 14.04 and as more
fully set forth in such Section, payments in respect of the principal of (and premium, if any, on) and interest, if any, on such
Securities when such payments are due; (B) the Company’s obligations with respect to such Securities under Sections 3.05,
3.06, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such Securities as contemplated by Section
10.04; (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder, including, without limitation, Section 6.06;
and (D) this Article. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section
notwithstanding the prior exercise of its option under Section 14.03 with respect to such Securities. Following a defeasance, payment
of such Securities may not be accelerated because of an Event of Default.
Section 14.03. Covenant
Defeasance.
Upon the Company’s exercise of the
above option applicable to this Section with respect to any Securities of or within a series, the Company shall be released from
its obligations under Section 10.06, and, if specified pursuant to Section 3.01, its obligations under any other covenant with
respect to such Outstanding Securities on and after the date the conditions set forth in Section 14.04 are satisfied (hereinafter,
“covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for
the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection
with Section 10.06, or such other covenant, but shall continue to be deemed “Outstanding” for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities, the Company may omit to comply
with and shall have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by reason
of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission
to comply shall not constitute a Default or an Event of Default under Section 5.01(iv) or 5.01(vii) or otherwise, as the case may
be, but except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. Following a
covenant defeasance, payment of such Securities may not be accelerated because of an Event of Default solely by reference to such
Sections specified above in this Section 14.03.
Section 14.04. Conditions
to Defeasance or Covenant Defeasance.
The following shall be the conditions to
application of either Section 14.02 or Section 14.03 to any Outstanding Securities of or within a series:
(i) The
Company shall have irrevocably deposited or caused to be irrevocably deposited with the Trustee (or another trustee satisfying
the requirements of Section 6.07 who shall agree to comply with the provisions of this Article Fourteen applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for the benefit of, and dedicated
solely to, the Holders of such Securities, (A) an amount (in such Currency in which such Securities are then specified as payable
at Stated Maturity), or (B) Government Obligations applicable to such Securities (determined on the basis of the Currency in which
such Securities are then specified as payable at Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, without reinvestment thereof, not later than one day before the
due date of any payment of principal of (and premium, if any, on) and interest, if any, on such Securities, money in an amount,
or (C) a combination thereof in an amount, sufficient, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (1) the principal of (and premium, if any, on) and interest, if
any, on such Outstanding Securities on the Stated Maturity of such principal or installment of principal or interest and (2) any
mandatory sinking fund payments or analogous payments applicable to such Outstanding Securities on the day on which such payments
are due and payable in accordance with the terms of this Indenture and of such Securities.
(ii) Such
defeasance or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party or by which it is bound.
(iii) No
Default or Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit or,
insofar as Sections 5.01(v) and 5.01(vi) are concerned, at any time during the period ending on the 91st day after the date of
such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(iv) In
the case of an election under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date
of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(v) In
the case of an election under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities will not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times
as would have been the case if such covenant defeasance had not occurred.
(vi) The
Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent to either the defeasance under Section 14.02 or the covenant defeasance under Section 14.03 (as the case may be) have
been complied with.
(vii) Notwithstanding
any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any additional
or substitute terms, conditions or limitations which may be imposed on the Company in connection therewith pursuant to Section
3.01.
Section 14.05. Deposited
Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph
of Section 10.03, all money and Government Obligations (or other property as may be provided pursuant to Section 3.01) (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 14.05,
the “Trustee”) pursuant to Section 14.04 in respect of any Outstanding Securities of any series shall be held
in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities of all sums due and to become due thereon in respect of principal (and premium, if any) and interest,
if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect
to any Security pursuant to Section 3.01, if, after a deposit referred to in Section 14.04 has been made, (a) the Holder of a Security
in respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.12(b) or the terms of such Security
to receive payment in a Currency other than that in which the deposit pursuant to Section 14.04 has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 3.12(d) or 3.12(e) or by the terms of any Security in respect
of which the deposit pursuant to Section 14.04 has been made, the indebtedness represented by such Security shall be deemed to
have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest,
if any, on such Security as the same becomes due out of the proceeds yielded by converting (from time to time as specified below
in the case of any such election) the amount or other property deposited in respect of such Security into the Currency in which
such Security becomes payable as a result of such election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the second Business Day prior to each payment date, except, with respect to a Conversion Event, for
such Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the
Trustee against any tax, fee or other charge imposed on or assessed against the money or Government Obligations deposited pursuant
to Section 14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by
law is for the account of the Holders of such Outstanding Securities; it being understood that the Trustee shall bear no responsibility
for any such tax, fee or other charge that is imposed by law or for the account of Holders. The foregoing sentence shall survive
the termination of this Indenture and the earlier resignation or removal of the Trustee.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government
Obligations (or other property and any proceeds therefrom) held by it as provided in Section 14.04 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable,
in accordance with this Article.
If, after the Company has made a deposit
with the Trustee pursuant to Section 14.04, the Trustee is unable to apply any money in accordance with Section 14.05 by reason
of any legal proceeding or by reason of any order or judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, then the Company’s obligations under this Indenture and the applicable Securities
shall be revived and reinstated as though no deposit had occurred pursuant to Section 14.04 until such time as the Trustee is permitted
to apply all such money in accordance with this Article Fourteen; provided, however, that if the Company has made
any payment of the principal of or interest on any series of Securities because of the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities to receive any such payment from the money held by the Trustee.
ARTICLE
Fifteen
MEETINGS OF HOLDERS OF SECURITIES
Section 15.01. Purposes
for Which Meetings May Be Called.
A meeting of Holders of any series of Securities
of such series may be called at any time and from time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders
of Securities of such series.
Section 15.02. Call,
Notice and Place of Meetings.
(a) The
Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 15.01, to be
held at such time and at such place in the Borough of Manhattan, The City of New York or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the manner provided in Section 1.06, not less than 21
nor more than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 10% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any
purpose specified in Section 15.01, by written request setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have made the first publication or mailing of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place
in the Borough of Manhattan, The City of New York or in London for such meeting and may call such meeting for such purposes by
giving notice thereof as provided in subsection (a) of this Section.
Section 15.03. Persons
Entitled to Vote at Meetings.
To be entitled to vote at any meeting of
Holders of Securities of any series, a Person shall be (i) a Holder of one or more Outstanding Securities of such series, or (ii)
a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be present or to speak at any meeting of Holders of Securities
of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its
counsel and any representatives of the Company and its counsel.
Section 15.04. Quorum;
Action.
The Persons entitled to vote a majority
in principal amount of the Outstanding Securities of a series shall constitute a quorum for a meeting of Holders of Securities
of such series; provided, however, that if any action is to be taken at such meeting with respect to a consent, waiver,
request, demand, notice, authorization, direction or other action that this Indenture expressly provides may be made, given or
taken by the Holders of not less than a specified percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute
a quorum. In the absence of a quorum within 30 minutes of the time appointed for any such meeting, the meeting shall, if convened
at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence
of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10 days
as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 15.02(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting
shall state expressly the percentage, as provided above, of the principal amount of the Outstanding Securities of such series which
shall constitute a quorum.
Except as limited by the proviso to Section
9.02, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may
be adopted by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series;
provided, however, that, except as limited by the proviso to Section 9.02, any resolution with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action which this Indenture expressly provides may be made,
given or taken by the Holders of a specified percentage, which is less than a majority, in principal amount of the Outstanding
Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage in principal amount of the Outstanding Securities
of that series.
Any resolution passed or decision taken
at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders
of Securities of such series, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions
of this Section 15.04, if any action is to be taken at a meeting of Holders of Securities of any series with respect to any consent,
waiver, request, demand, notice, authorization, direction or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there
shall be no minimum quorum requirement for such meeting; and
(ii) the
principal amount of the Outstanding Securities of such series that vote in favor of such consent, waiver, request, demand, notice,
authorization, direction or other action shall be taken into account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or taken under this Indenture.
Section 15.05. Determination
of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding
any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting
of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies
and in regard to the appointment and duties of inspectors of votes, the submission and examination of proxies, certificates and
other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding of Securities shall be proved in the manner specified
in Section 1.04 and the appointment of any proxy shall be proved in the manner specified in Section 1.04. Such regulations may
provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof
specified in Section 1.04 or other proof.
(b) The
Trustee shall, by an instrument in writing appoint a temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 15.02(b), in which case the Company or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting.
(c) At
any meeting of Holders, each Holder of a Security of such series or proxy shall be entitled to one vote for each $1,000 principal
amount of the Outstanding Securities of such series held or represented by such Holder; provided, however, that no
vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairman
of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security
of such series or proxy.
(d) Any
meeting of Holders of Securities of any series duly called pursuant to Section 15.02 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented
at the meeting, and the meeting may be held as so adjourned without further notice.
Section 15.06. Counting
Votes and Recording Action of Meetings.
The vote upon any resolution submitted to
any meeting of Holders of Securities of any series shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding
Securities of such series held or represented by them. The chairman of the meeting shall appoint at least one inspector of votes
who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the
meeting a verified written report of all votes cast at the meeting. A record, at least in duplicate, of the proceedings of each
meeting of Holders of Securities of any Series shall be prepared by the secretary of the meeting and there shall be attached to
said record the original reports of the inspector of votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided
in Section 15.02 and, if applicable, Section 15.04. Each copy shall be signed and verified by the affidavits of the chairman and
secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive
evidence of the matters therein stated.
* * * * *
This Indenture may be executed in any number
of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have
caused this Indenture to be duly executed, as of the day and year first above written.
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EAGLE POINT CREDIT COMPANY INC. |
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By: |
/s/ Thomas P. Majewski |
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Name: Thomas P. Majewski |
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Title: Chief Executive Officer |
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American Stock Transfer & Trust Company, LLC, Trustee |
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By: |
/s/ M. Asher F. Richelli |
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Name: M. Asher F. Richelli |
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Title: Executive Vice President, General Counsel |
[Signature Page to Indenture]
EXHIBIT
A
FORM OF
CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description
of Securities to be delivered]
This is to certify that, based solely on
written certifications that we have received in writing, by tested telex or by electronic transmission from each of the persons
appearing in our records as persons entitled to a portion of the principal amount set forth below (our “Member Organizations”)
substantially in the form attached hereto, as of the date hereof, [U.S. $] principal amount of the above-captioned Securities (i)
is owned by person(s) that are not “United States persons” (“United States Person(s)”) within the
meaning of Section 7701(a)(30) of the United States Internal Revenue Code of 1986, as amended (the “Code”),
(ii) is owned by United States Person(s) that are (a) foreign branches of United States financial institutions (financial institutions,
as defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v)[(iv)], are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches
of United States financial institutions and who hold the Securities through such United States financial institutions on the date
hereof (and in either case (a) or (b), each such financial institution has agreed, on its own behalf or through its agent, that
we may advise Eagle Point Credit Company Inc. or its agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Code and the United States Treasury Regulations thereunder), or (iii) is owned by United
States or foreign financial institution(s) for purposes of resale during the restricted period (as defined in United States Treasury
Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions described in clause (iii)
above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes
of resale directly or indirectly to a United States person or to a person within the United States or its possessions.
As used herein, “United States”
means the United States of America (including the states and the District of Columbia) and its “possessions” (including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands).
We further certify that (i) we are not making
available herewith for exchange (or, if relevant, collection of any interest) any portion of the temporary global Security representing
the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof
we have not received any notification from any of our Member Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest)
are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is
required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
[To be dated no earlier than the Exchange Date or the relevant
Interest Payment
Date occurring prior to the Exchange Date, as applicable]
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as Operator of the Euroclear System |
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Title: |
Exhibit A
Exhibit (d)(6)
FIRST SUPPLEMENTAL INDENTURE
between
EAGLE POINT CREDIT COMPANY INC.
and
AMERICAN STOCK TRANSFER & TRUST COMPANY,
LLC,
Trustee
Dated as of December 4, 2015
THIS FIRST SUPPLEMENTAL INDENTURE (this
“First Supplemental Indenture”), dated as of December 4, 2015, is between Eagle Point Credit Company Inc., a
Delaware corporation (the “Company”), and American Stock Transfer & Trust Company, LLC, a New York limited
liability trust company, as trustee (the “Trustee”). All capitalized terms used but not otherwise defined herein
shall have the meaning set forth in the Base Indenture (as defined below).
RECITALS OF THE COMPANY
WHEREAS, the Company and the Trustee executed
and delivered an Indenture, dated as of December 4, 2015 (the “Base Indenture” and, as supplemented by this
First Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time
of the Company’s debt securities (the “Securities”) evidencing its unsecured indebtedness, to be issued
in one or more series as provided in the Base Indenture;
WHEREAS, the Company desires to issue and
sell up to $28,750,000 aggregate principal amount (including $3,750,000 aggregate principal amount pursuant to the underwriter’s
overallotment option) of the Company’s 7.00% notes due 2020 (the “Series 2020 Notes”);
WHEREAS, Sections 9.01(iv) and 9.01(vi)
of the Base Indenture provide that, without the consent of Holders of the Securities of any series issued under the Indenture,
the Company, when authorized by or pursuant to a Board Resolution, and the Trustee, at any time and from time to time, may enter
into one or more indentures supplemental to the Base Indenture to (i) change or eliminate any of the provisions of the Base Indenture
when there is no Security Outstanding of any series created prior to the execution of a supplemental indenture that is entitled
to the benefit of such provision and (ii) establish the form or terms of Securities of any series as permitted by Sections 2.01
and 3.01 of the Base Indenture;
WHEREAS, the Company desires to establish
the form and terms of the Series 2020 Notes and to modify, alter, supplement and change certain provisions of the Base Indenture
for the benefit of the Holders of the Series 2020 Notes (except as may be provided in a future supplemental indenture to the Indenture
(“Future Supplemental Indenture”)); and
WHEREAS, the Company has duly authorized
the execution and delivery of this First Supplemental Indenture to provide for the issuance of the Series 2020 Notes and all acts
and things necessary to make this First Supplemental Indenture a valid and legally binding obligation of the Company and to constitute
a valid agreement of the Company, in accordance with its terms, have been done and performed.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises
and the purchase of the Series 2020 Notes by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Series 2020 Notes, as follows:
ARTICLE I
TERMS OF THE SERIES 2020 NOTES
Section 1.01. Terms of the Series 2020 Notes.
The following terms relating to the Series 2020 Notes are hereby established:
(a) The
Series 2020 Notes shall constitute a series of Securities having the title “7.00% Notes due 2020”. The Series 2020
Notes shall bear a CUSIP number of 269809 208 and an ISIN number of US2698092085.
(b) The
aggregate principal amount of the Series 2020 Notes that may be initially authenticated and delivered under the Indenture (except
for Series 2020 Notes authenticated and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other Series
2020 Notes pursuant to Sections 3.04, 3.05, 3.06, 9.06 or 11.07 of the Base Indenture) shall be up to $28,750,000 aggregate principal
amount (including $3,750,000 aggregate principal amount pursuant to the underwriter’s overallotment option). Under a Board
Resolution, Officer’s Certificate pursuant to Board Resolutions or a Future Supplemental Indenture, the Company may from
time to time, without the consent of the Holders of the Series 2020 Notes, issue additional Series 2020 Notes (in any such case,
“Additional Notes”) having the same ranking and the same interest rate, maturity and other terms as the Series
2020 Notes. Any Additional Notes and the existing Series 2020 Notes shall constitute a single series under the Indenture and all
references to the relevant Series 2020 Notes herein shall include the Additional Notes unless the context otherwise requires.
(c) The
Stated Maturity of the Series 2020 Notes shall be December 31, 2020. The entire outstanding principal of the Series 2020 Notes
shall be payable on the Stated Maturity, unless earlier redeemed or repurchased in accordance with the provisions of the Indenture.
(d) The
rate at which the Series 2020 Notes shall bear interest shall be 7.00% per annum of the aggregate principal amount. The date from
which interest shall accrue on the Series 2020 Notes shall be December 4, 2015, or, thereafter, the most recent Interest Payment
Date to which interest has been paid or provided for. The Interest Payment Dates for the Series 2020 Notes shall be March 31, June
30, September 30 and December 31 of each year, commencing March 31, 2016 (provided that if an Interest Payment Date falls
on a day that is not a Business Day in The City of New York, then the applicable interest payment shall be made on the next succeeding
Business Day, and no additional interest shall accrue as a result of such delayed payment). The initial interest period shall be
the period from, and including, December 4, 2015 (or the most recent Interest Payment Date to which interest has been paid or provided
for), to, but excluding, the initial Interest Payment Date, and the subsequent interest periods shall be the periods from, and
including, an Interest Payment Date to, but excluding, the next Interest Payment Date or the Stated Maturity, as the case may be.
The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date, shall be paid to the Person in
whose name the Series 2020 Note (or one or more predecessor Series 2020 Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be March 15, June 15, September 15 and December 15 of each year, commencing March 15,
2016 (provided, that if a Regular Record Date falls on a day that is not a Business Day in The City of New York, then that
Regular Record Date shall be the next succeeding Business Day), as the case may be, next preceding such Interest Payment Date.
Interest on the Series 2020 Notes shall be computed on the basis of a 360-day year of twelve 30-day months. Payment of principal
of (and premium, if any, on) the Series 2020 Notes shall be made at the Corporate Trust Office of the Trustee in such coin or currency
of the United States as at the time of payment is legal tender for payment of public and private debts, and payment of interest
shall be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register;
provided, however, that at the option of the Holder, payment of principal of (and premium, if any, on) and
interest on the Series 2020 Notes may be made by wire transfer of immediately available funds to an account at a bank in the United
States; provided, further, however, that so long as the Series 2020 Notes are registered to Cede & Co.,
such payment shall be made by wire transfer in accordance with the procedures established by The Depository Trust Company (“DTC”)
and the Trustee.
(e) The
Series 2020 Notes shall be initially issuable in global form (each such Series 2020 Note, a “Global Note”).
The Global Notes and the Trustee’s certificate of authentication thereon shall be substantially in the form of Exhibit
A to this First Supplemental Indenture. Each Global Note shall represent the outstanding Series 2020 Notes as shall be specified
therein and each shall provide that it shall represent the aggregate principal amount of outstanding Series 2020 Notes from time
to time endorsed thereon and that the aggregate principal amount of outstanding Series 2020 Notes represented thereby may from
time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions. Any endorsement of a Global Note to
reflect the amount of any increase or decrease in the principal amount of outstanding Series 2020 Notes represented thereby shall
be made by the Trustee or the Security Registrar, in accordance with Sections 2.03 and 3.05 of the Base Indenture.
(f) The
depositary for such Global Notes (the “Depositary”) shall be DTC. The Security Registrar with respect to the
Global Notes shall be the Trustee.
(g) The
Series 2020 Notes shall be defeasible pursuant to Section 14.02 or Section 14.03 of the Base Indenture. Covenant defeasance contained
in Section 14.03 of the Base Indenture shall apply to the covenants contained in Sections 10.08 and 10.12 of the Indenture.
(h) The
Series 2020 Notes shall be redeemable pursuant to Section 11.01 of the Base Indenture and as follows:
(i) The
Series 2020 Notes shall be redeemable in whole or in part, at any time or from time to time, at the option of the Company, on or
after December 31, 2017, at a Redemption Price equal to $25 per Series 2020 Note plus accrued and unpaid interest otherwise payable
for the then-current quarterly interest period accrued to, but excluding, the Redemption Date.
(ii) Notice
of redemption shall be given in writing and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery,
to each Holder of the Series 2020 Notes to be redeemed, not less than thirty (30) nor more than sixty (60) days prior to the Redemption
Date, at the Holder’s address appearing in the Security Register. All notices of redemption shall contain the information
set forth in Section 11.04 of the Base Indenture and the delivery of such shall be subject to the terms of the Indenture.
(iii) Any
exercise of the Company’s option to redeem the Series 2020 Notes shall be done in compliance with the Investment Company
Act.
(iv) If
less than all of the Series 2020 Notes are to be redeemed at any time, the Trustee shall select the Series 2020 Notes to be redeemed
(1) if the Series 2020 Notes are listed on any national securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Series 2020 Notes are listed, (2) on a pro rata basis to the extent practicable or (3)
by lot or such similar method in accordance with the procedures of DTC.
(v) Unless
the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the
Series 2020 Notes called for redemption hereunder.
(i) The
Series 2020 Notes shall not be subject to any sinking fund pursuant to Section 12.01 of the Base Indenture.
(j) The
Series 2020 Notes shall be issuable in denominations of $25 and integral multiples of $25 in excess thereof.
(k) Holders
of the Series 2020 Notes shall not have the option to have the Series 2020 Notes repaid prior to the Stated Maturity other than
in accordance with Article Thirteen of the Indenture.
ARTICLE II
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 2.01. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article One of the Base Indenture shall be amended by replacing
the definition of “Business Day” in Section 1.01 thereof with the following:
“Business Day” means,
with respect to any Note, any day other than a Saturday, a Sunday or a day on which banking institutions in New York are authorized
or obligated by law or executive order to close.
Section 2.02. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article One of the Base Indenture shall be amended by adding the
following defined terms to Section 1.01 thereof in appropriate alphabetical sequence, as follows:
“Exchange Act” means
the United States Securities Exchange Act of 1934 and the rules and regulations promulgated by the Commission thereunder and any
statute successor thereto, in each case as amended from time to time.
“GAAP” means generally
accepted accounting principles in the United States set forth in the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants, the opinions and pronouncements of the Public Company Accounting Oversight
Board and the statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other
entity as have been approved by a significant segment of the accounting profession in the United States, which are in effect from
time to time.
ARTICLE III
SECURITIES FORMS
Section 3.01. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article Two of the Base Indenture shall be amended by adding the
following new Section 2.04 thereto, as set forth below:
“Section 204. Certificated
Notes.
Notwithstanding anything to
the contrary in the Indenture, Series 2020 Notes in physical, certificated form shall be issued and delivered to each person that
the Depositary identifies as a beneficial owner of the related Series 2020 Notes only if:
(1) the Depositary notifies the
Company at any time that it is unwilling or unable to continue as depositary for the Series 2020 Notes in global form and a successor
depositary is not appointed within 90 days; or
(2) the Depositary ceases to be
registered as a clearing agency under the Exchange Act, and a successor depositary is not appointed within 90 days.”
ARTICLE IV
COVENANTS
Section 5.01. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article Ten of the Base Indenture shall be amended by replacing
Section 10.06 thereof in its entirety with the following:
“Section 10.06. [RESERVED]”
Section 5.02. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article Ten of the Base Indenture shall be amended by replacing
Section 10.07 thereof in its entirety with the following:
“Section 10.07. Waiver
of Certain Covenants.
The Company may omit in any particular
instance to comply with any covenant or condition, as specified pursuant to Section 3.01(xv), for Securities of any series, in
any covenants of the Company added to Article Ten pursuant to Section 3.01(xiv) or Section 3.01(xv) in connection with the Securities
of a series, if before or after the time for such compliance the Holders of at least a majority in aggregate principal amount of
all Outstanding Securities of such series, by Act of such Holders, either waive such compliance in such instance or generally waive
compliance with such covenant or condition, but no such waiver shall extend to or affect such covenant or condition except to the
extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the
Trustee in respect of any such covenant or condition shall remain in full force and effect.”
Section 5.03. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article Ten of the Base Indenture shall be amended by adding the
following new Sections 10.08 through 10.12 thereto, each as set forth below:
“Section 10.08. Closed-end Fund.
The Company hereby agrees, that
for the period of time during which Series 2020 Notes are Outstanding, the Company will remain a non-diversified closed-end management
investment company for purposes of the Investment Company Act.”
“Section 10.09. Ranking.
The Company hereby agrees, that
for the period of time during which Series 2020 Notes are Outstanding, the Company’s payment obligations under the Indenture
and the Series 2020 Notes shall at all times rank pari passu, without preference or priority, with all of the Company’s
existing and future unsecured indebtedness and senior to any preferred stock the Company may issue.”
“Section 10.10. Section 18(a)(1)(A) of
the Investment Company Act.
The Company hereby agrees that
for the period of time during which Series 2020 Notes are Outstanding, the Company will not violate, whether or not it is subject
to, Section 18(a)(1)(A) of the Investment Company Act, as in effect from time to time or any successor provisions thereto, giving
effect, in either case, to any exemptive relief granted to the Company by the Commission.”
“Section 10.11. Section 18(a)(1)(B) of
the Investment Company Act.
The Company hereby agrees that
for the period of time during which Series 2020 Notes are Outstanding, the Company will not violate, whether or not it is subject
to, Section 18(a)(1)(B) of the Investment Company Act, as in effect from time to time or any successor provisions thereto, giving
effect, in either case, to (i) any exemptive relief granted to the Company by the Commission and (ii) no-action relief granted
by the Commission to another closed-end investment company (or to the Company if it determines to seek such similar no-action or
other relief) permitting the closed-end investment company to declare any cash dividend or distribution notwithstanding the prohibition
contained in Section 18(a)(1)(B) of the Investment Company Act in order to maintain the closed-end investment company’s status
as a regulated investment company under Subchapter M of the United States Internal Revenue Code of 1986, as amended.”
“Section 10.12. Commission Reports and
Reports to Holders.
The Company hereby agrees that
if, at any time, the Company is not subject to the reporting requirements of Sections 13 or 15(d) of the Exchange Act to file any
periodic reports with the Commission, the Company agrees to furnish to the Holders of Series 2020 Notes and the Trustee for the
period of time during which the Series 2020 Notes are Outstanding: (i) within 60 days after the end of the each fiscal year of
the Company, audited annual consolidated financial statements of the Company and (ii) within 60 days after the end of the second
fiscal quarter of the Company, unaudited interim consolidated financial statements of the Company. All such financial statements
shall be prepared, in all material respects, in accordance with GAAP, as applicable.”
ARTICLE V
REDEMPTION FOR ASSET COVERAGE
Section 5.01. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, the Base Indenture shall be amended by adding the following new
Section 11.08 thereto, as set forth below:
“Section 11.08. Redemption for Asset Coverage.
(i) If
the Company shall fail to maintain asset coverage (as defined in Section 18(h) of the Investment Company Act) with respect to the
Securities of 300% as of the last Business Day of any calendar quarter and such failure is not cured as of the close of business
on the date that is 30 calendar days following the date of filing of the Company’s Annual Report on Form N-CSR, Semiannual
Report on Form N-CSRS or Quarterly Report on Form N-Q with the Commission with respect to such calendar quarter (such Business
Day, the “Asset Coverage Cure Date”), the Company shall fix a Redemption Date and proceed to redeem, in accordance
with Sections 11.03 through 11.07, an aggregate principal amount of Securities (which in the Company’s sole option may include
any number or portion of the Series 2020 Notes) that, when combined with any shares of preferred stock, par value $0.001 per share,
of the Company redeemed pursuant to mandatory redemption for failing to maintain the asset coverage required by Section 18 of the
Investment Company Act in respect of such preferred stock, (i) results in the Company having asset coverage of at least 300% or
(ii) if smaller, the maximum aggregate principal amount of Securities that can be redeemed out of funds legally available for such
redemption; provided, that, in connection with any such redemption for failure to maintain the asset coverage required by
the Investment Company Act, the Company may, at its sole option, redeem such additional amount of Securities (including the Series
2020 Notes) that shall result in the Company having asset coverage of up to and including 385%.
(ii) The
Company shall effect any redemption pursuant to this Section 11.08 on the date fixed by the Company, which date will not be later
than 90 calendar days after the Asset Coverage Cure Date, except that if the Company does not have funds legally available for
the redemption of all of the aggregate principal amount of Series 2020 Notes which have been designated to be redeemed or the Company
otherwise is unable to effect such redemption on or prior to 90 calendar days after the Asset Coverage Cure Date, the Company shall
redeem those Series 2020 Notes which the Company was unable to redeem on the earliest practicable date on which the Company is
able to effect such redemption.
(iii) The
Redemption Price for the Series 2020 Notes redeemed pursuant to this Section 11.08 shall be $25 per Series 2020 Note plus accrued
and unpaid interest otherwise payable for the then-current quarterly interest period accrued to, but excluding, the Redemption
Date.
(iv) If
less than all of the Series 2020 Notes are to be redeemed pursuant to this Section 11.08 at any time, the Trustee shall select
the Series 2020 Notes to be redeemed (1) if the Series 2020 Notes are listed on any national securities exchange, in compliance
with the requirements of the principal national securities exchange on which the Series 2020 Notes are listed, (2) on a pro rata
basis to the extent practicable or (3) by lot or such similar method in accordance with the procedures of DTC.
(v) Unless
the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the
Series 2020 Notes called for redemption pursuant to this Section 11.08.”
ARTICLE VI
DEFEASANCE AND COVENANT DEFEASANCE
Section 6.01. Except as may be provided
in a Future Supplemental Indenture, for the benefit of the Holders of the Series 2020 Notes but no other series of Securities under
the Indenture, whether now or hereafter issued and Outstanding, Article Fourteen of the Base Indenture shall be amended by replacing
Section 14.03 thereof in its entirety with the following:
“Section 14.03. Covenant
Defeasance.
Upon the Company’s exercise
of the above option applicable to this Section with respect to any Securities of or within a series, if specified pursuant to Section
3.01, its obligations under any other covenant with respect to such Outstanding Securities on and after the date the conditions
set forth in Section 14.04 are satisfied (hereinafter, “covenant defeasance”), and such Securities shall thereafter
be deemed to be not “Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with such covenant, but shall continue to be deemed “Outstanding”
for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any
such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section
or such other covenant or by reason of reference in any such Section or such other covenant to any other provision herein or in
any other document and such omission to comply shall not constitute a Default or an Event of Default under Section 5.01(iv) or
5.01(vii) or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture and such Securities
shall be unaffected thereby. Following a covenant defeasance, payment of such Securities may not be accelerated because of an Event
of Default solely by reference to such Sections specified above in this Section 14.03.”
ARTICLE VII
MISCELLANEOUS
Section 7.01. This First Supplemental Indenture
and the Series 2020 Notes shall be governed by and construed in accordance with the laws of the State of New York, without reference
to its conflicts of law principles. This First Supplemental Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of the Indenture and shall, to the extent applicable, be governed by such provisions.
Section 7.02. In case any provision in this
First Supplemental Indenture or in the Series 2020 Notes shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 7.03. This First Supplemental Indenture
may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same First Supplemental Indenture. The exchange of copies of this First Supplemental
Indenture and of signature pages by facsimile, .pdf transmission, email or other electronic means shall constitute effective execution
and delivery of this First Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile,
.pdf transmission, email or other electronic means shall be deemed to be their original signatures for all purposes.
Section 7.04. The Base Indenture, as supplemented
and amended by this First Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture and this First
Supplemental Indenture shall be read, taken and construed as one and the same instrument with respect to the Series 2020 Notes.
All provisions included in this First Supplemental Indenture supersede any conflicting provisions included in the Base Indenture
with respect to the Series 2020 Notes, unless not permitted by law. The Trustee accepts the trusts created by the Indenture, as
supplemented by this First Supplemental Indenture, and agrees to perform the same upon the terms and conditions of the Base Indenture,
as supplemented by this First Supplemental Indenture.
Section 7.05. The provisions of this First Supplemental
Indenture shall become effective as of the date hereof.
Section 7.06. Notwithstanding anything else
to the contrary herein, the terms and provisions of this First Supplemental Indenture shall apply only to the Series 2020 Notes
and shall not apply to any other series of Securities under the Indenture and this First Supplemental Indenture shall not and does
not otherwise affect, modify, alter, supplement or change the terms and provisions of any other series of Securities under the
Indenture, whether now or hereafter issued and Outstanding.
Section 7.07. The recitals contained herein
and in the Series 2020 Notes, except the Trustee’s certificate of authentication, shall be taken as the statements of the
Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to the validity
or sufficiency of this First Supplemental Indenture, the Series 2020 Notes or any Additional Notes, except that the Trustee represents
that it is duly authorized to execute and deliver this First Supplemental Indenture, authenticate the Series 2020 Notes and any
Additional Notes and perform its obligations hereunder. The Trustee shall not be accountable for the use or application by the
Company of the Series 2020 Notes or any Additional Notes or the proceeds thereof.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have
caused this First Supplemental Indenture to be duly executed as of the date first above written.
|
EAGLE POINT CREDIT COMPANY INC. |
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By: |
/s/ Thomas P. Majewski |
|
Name: |
Thomas P. Majewski |
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Title: |
Chief Executive Officer |
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, Trustee |
|
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By: |
/s/ M. Asher F. Richelli |
|
Name: |
M. Asher F. Richelli |
|
Title: |
Executive Vice President, General Counsel |
[Signature Page to First Supplemental
Indenture]
EXHIBIT A
[FORM OF GLOBAL NOTE]
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER DEFINED AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED,
IN THE NAME OF ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND SUCH CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL, AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
Eagle Point Credit Company Inc.
No. |
$ |
|
CUSIP No. 269809 208 |
|
ISIN No. US2698092085 |
7.00% Notes due 2020
Eagle Point Credit Company Inc., a Delaware
corporation (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of
(U.S. $ ) on December 31, 2020 (or the next succeeding Business
Day, and no additional interest shall accrue as a result of such delayed payment), and to pay interest thereon from
or, thereafter, from the most recent Interest Payment Date to which interest has been paid or duly provided for, quarterly on March
31, June 30, September 30 and December 31 of each year, commencing
(provided, that if an Interest Payment Date falls on a day that is not a Business Day in The City of New York, then the
applicable interest payment shall be made on the next succeeding Business Day, and no additional interest shall accrue as a result
of such delayed payment), at the rate of 7.00% per annum of the principal amount, until the principal hereof is paid or made available
for payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided
in such Indenture, be paid to the Person in whose name this Security is registered at the close of business on the Regular Record
Date for such interest, which shall be March 15, June 15, September 15 and December 15 of each year, commencing
(provided that if a Regular Record Date falls on a day that is not a Business Day in The City of New York, then that Regular
Record Date shall be the next succeeding Business Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for shall forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Security is registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of
this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture. This Security may be issued as part of a series.
Payment of principal of (and premium, if
any, on) this Security shall be made at the Corporate Trust Office of the Trustee in such coin or currency of the United States
as at the time of payment is legal tender for payment of public and private debts, and payment of interest shall be made by check
mailed to the address of the Person entitled thereto as such address shall appear in the Security Register; provided,
however, that at the option of the Holder, payment of principal of (and premium, if any, on) and interest on this Security
may be made by wire transfer of immediately available funds to an account at a bank in the United States; provided, further,
however, that so long as this Security is registered to Cede & Co., such payment shall be made by wire transfer in accordance
with the procedures established by DTC and the Trustee.
Reference is hereby made to the further
provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect
as if set forth at this place.
Unless the certificate
of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused
this instrument to be duly executed by the undersigned officer.
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EAGLE POINT CREDIT COMPANY INC. |
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By: |
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Name: |
Thomas P. Majewski |
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Title: |
Chief Executive Officer |
Attest
By: |
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Name: |
Courtney B. Fandrick |
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Title: |
Secretary, Eagle Point Credit Company Inc. |
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Dated: ,
2015
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
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AMERICAN STOCK TRANSFER & TRUST COMPANY, LLC, Trustee |
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By: |
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Authorized Signatory |
Dated: ,
2015
Eagle Point Credit Company Inc.
7.00% Notes due 2020
This Security is one of a duly authorized
issue of securities of the Company (herein called the “Securities”), issued and to be issued in one or more
series under an Indenture, dated as of December 4, 2015 (herein called the “Base Indenture”), between the Company
and American Stock Transfer & Trust Company, LLC, Trustee (herein called the “Trustee”, which term includes
any successor trustee under the Base Indenture), and reference is hereby made to the Base Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities
and of the terms upon which the Securities are, and are to be, authenticated and delivered, as supplemented by the First Supplemental
Indenture, dated as of December 4, 2015 (the “First Supplemental Indenture” and, together with the Base Indenture,
herein called the “Indenture”). In the event of any conflict between the Base Indenture and the First Supplemental
Indenture, the First Supplemental Indenture shall govern and control.
This Security is one of the series designated
on the face hereof, initially limited in aggregate principal amount to $28,750,000. Under a Board Resolution, an Officer’s
Certificate pursuant to Board Resolutions or an indenture supplement, the Company may from time to time, without the consent of
the Holders of Securities, issue additional Securities of this series (in any such case, “Additional Securities”)
having the same ranking and the same interest rate, maturity and other terms as the Securities. Any Additional Securities and the
existing Securities shall constitute a single series under the Indenture and all references to the relevant Securities herein shall
include the Additional Securities unless the context otherwise requires. The aggregate amount of outstanding Securities represented
hereby may from time to time be reduced or increased, as appropriate, to reflect exchanges and redemptions.
The Securities of this series are subject
to redemption in whole or in part, at any time or from time to time, at the option of the Company, on or after December 31, 2017
at a Redemption Price of $25 per security plus accrued and unpaid interest payments otherwise payable for the then-current quarterly
interest period to, but excluding, the Redemption Date.
In addition, the Securities of this series
are subject to redemption if the Company fails to maintain asset coverage (as defined in Section 18(h) of the Investment Company
Act) with respect to the Securities of 300% as of the last Business Day of any calendar quarter and such failure is not cured as
of the date that is 30 calendar days following the date of filing of the Company’s Annual Report on Form N-CSR, Semiannual
Report on Form N-CSRS or Quarterly Report on Form N-Q with the Commission with respect to such calendar quarter at a Redemption
Price equal to $25 per security plus accrued and unpaid interest payments otherwise payable for the then-current quarterly interest
period to, but excluding, the Redemption Date.
Notice of redemption shall be given in writing
and mailed, first-class postage prepaid or by overnight courier guaranteeing next-day delivery, to each Holder of the Securities
to be redeemed, not less than thirty (30) nor more than sixty (60) days prior to the Redemption Date, at the Holder’s address
appearing in the Security Register. All notices of redemption shall contain the information set forth in Section 11.04 of the Base
Indenture.
Any exercise of the Company’s option
to redeem the Securities shall be done in compliance with the Investment Company Act.
If less than all of the Securities are to
be redeemed or purchased in an offer to purchase at any time, the Trustee shall select the Securities of such series to be redeemed
or purchased (1) if the Securities are listed on any national securities exchange, in compliance with the requirements of the principal
national securities exchange on which the Securities are listed, (2) on a pro rata basis to the extent practicable or (3) by lot
or such similar method in accordance with the procedures of DTC. In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof.
Unless the Company defaults in payment of
the Redemption Price, on and after the Redemption Date, interest shall cease to accrue on the Securities called for redemption.
The Indenture contains provisions for defeasance
at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to
this Security, in each case upon compliance with certain conditions set forth in the Indenture.
Holders of Securities do not have the option
to have the Securities repaid prior to December 31, 2020.
If an Event of Default with respect to Securities
of this series shall occur and be continuing (other than Events of Default related to certain events of bankruptcy, insolvency
or reorganization as set forth in the Indenture), the principal of the Securities of this series may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions
as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of
the Holders of the Securities of each series to be affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders
of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions
of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture
or for the appointment of a receiver or trustee or for any other remedy thereunder, unless (1) such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, (2) the Holders
of not less than 25% in principal amount of the Securities of this series at the time Outstanding shall have made written request
to the Trustee to institute proceedings in respect of such Event of Default as Trustee, (3) such Holder offered the Trustee indemnity
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, (4) for
sixty (60) days after receipt of such notice, request and offer of indemnity, the Trustee shall have failed to institute any such
proceeding, and (5) the Trustee shall not have received from the Holders of a majority in principal amount of Securities of this
series at the time Outstanding a direction inconsistent with such request. The foregoing shall not apply to any suit instituted
by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and
no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional,
to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject
to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender
of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate
principal amount, shall be issued to the designated transferee or transferees.
The Securities of this series are issuable
only in registered form without coupons in denominations of $25 and any integral multiples of $25 in excess thereof. As provided
in the Indenture and subject to certain limitations therein set forth, Securities of this series are exchangeable for a like aggregate
principal amount of Securities of this series and of like tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any
such registration of transfer or exchange, but the Company or Trustee may require payment of a sum sufficient to cover any tax
or other governmental charge payable in connection therewith.
Prior to due presentment of this Security
for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose
name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and neither the
Company, the Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this Security which are
defined in the Indenture shall have the meanings assigned to them in the Indenture.
To the extent any provision in this Security
conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
The Indenture and this Security shall be
governed by and construed in accordance with the laws of the State of New York, without reference to its conflicts of law principles.
Exhibit (h)(3)
Eagle
point credit COMPANY Inc.
$25,000,000
7.00% Notes due 2020
UNDERWRITING
AGREEMENT
DATED December 1, 2015
December 1, 2015
Incapital LLC
200 South Wacker Drive, Suite 3700
Chicago, Illinois 60606
Ladies and Gentlemen:
Eagle Point Credit Company
Inc., a corporation organized under the laws of Delaware (the “Company”), is a non-diversified closed-end management
investment company that has registered as an investment company under the Investment Company Act of 1940, as amended (the “Investment
Company Act”). Eagle Point Credit Management LLC, a Delaware limited liability company (the “Investment Adviser”),
acts as the Company’s investment adviser. Eagle Point Administration LLC, a Delaware limited liability company (the “Administrator”),
acts as the Company’s administrator.
The Company proposes to
issue and sell to Incapital LLC (the “Underwriter”) $25,000,000 aggregate principal amount of 7.00% Notes due
2020 (the “Firm Notes”). The Company also proposes to sell to the Underwriter not more than an additional $3,750,000
aggregate principal amount of Notes (the “Additional Notes”) if and to the extent that the Underwriter shall
have determined to exercise the right to purchase such Additional Notes granted to the Underwriter in Section 3 hereof. The Firm
Notes and the Additional Notes are hereinafter collectively referred to as the “Notes.”
The Company has entered
into (i) an investment advisory agreement with the Investment Adviser dated as of June 6, 2014 (the “Investment Advisory
Agreement”), (ii) a custody agreement with Deutsche Bank Trust Company Americas dated as of June 5, 2014 (the “Custody
Agreement”) and (iii) an Administration Agreement with the Administrator dated as of June 6, 2014 (the “Administration
Agreement”). Collectively, the Investment Advisory Agreement, the Custody Agreement and the Administration Agreement
are herein referred to as the “Company Agreements.”
The Investment Company
Act and the Securities Act of 1933, as amended (the “Securities Act”), are hereinafter referred to collectively
as the “Acts,” and the rules and regulations of the Securities and Exchange Commission (the “Commission”)
under the Acts and under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), are hereinafter
referred to collectively as the “Rules and Regulations.”
The Notes will be issued
under an indenture as supplemented by a first supplemental indenture, each to be dated as of December 4, 2015 (collectively, the
“Indenture”) between the Company and American Stock & Trust Company, LLC, trustee (the “Trustee”).
The Notes will be issued as fully registered securities to Cede & Co. (or such other name as may be requested by an authorized
representative of The Depository Trust Company (“DTC”)), as nominee of DTC, pursuant to a blanket letter of
representations, dated October 7, 2014, between the Company and DTC.
The Company has filed with the Commission
a registration statement on Form N-2 (File Nos. 333-205540 and 811-22974), under the Securities Act in respect of shares of its
common stock, par value $0.001 per share (the “Common Stock”), shares of its preferred stock, par value $0.001
per share, its debt securities and subscription rights. The registration statement as amended, including the exhibits and schedules
thereto, at the time it became effective, including the information, if any, deemed to be part of the registration statement at
the time of its effectiveness pursuant to paragraph (a) of Rule 430C of the Rules and Regulations is hereinafter referred to as
the “Registration Statement.” The prospectus included in the Registration Statement at the time it became effective
is hereinafter referred to as the “Base Prospectus.” The final prospectus, which includes the final prospectus
supplement dated December 1, 2015 together with the Base Prospectus, first used by the Company to confirm sales of the Notes in
the form filed with the Commission on or before the second business day after the date hereof (or such earlier time as may be required
under the Securities Act) in accordance with Rule 497 of the Rules and Regulations is hereinafter referred to as the “Prospectus.”
The preliminary prospectus, which includes the preliminary prospectus supplement dated November 30, 2015 together with the Base
Prospectus, filed with the Commission in accordance with Rule 497 of the Rules and Regulations is hereinafter referred to as the
“Preliminary Prospectus.”
All references in this
Agreement to the Registration Statement, the Preliminary Prospectus and the Prospectus, or any amendments or supplements to any
of the foregoing shall be deemed to include any copy thereof filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval System (“EDGAR”) system.
For purposes of this Agreement,
“Omitting Prospectus” means any written advertisement used with the written consent of the Company in the public
offering of the Notes and filed pursuant to Rule 482 of the Rules and Regulations (“Rule 482”). “Time
of Sale Prospectus” means, as of the Applicable Time (as defined below), the Preliminary Prospectus, together with the
pricing information set forth on Schedule I hereto (which information the Underwriter has informed the Company is being conveyed
orally by the Underwriter to prospective purchasers at or prior to the Underwriter’s confirmation of sales of the Notes in
the offering) and each Omitting Prospectus identified on Schedule II hereto (excluding information in an Omitting Prospectus that
is superseded by the Prospectus), all considered together. As used herein, the terms “Registration Statement,”
“Preliminary Prospectus,” “Time of Sale Prospectus” and “Prospectus” shall
include the documents, if any, incorporated by reference therein.
“Applicable Time”
means 4:30 P.M. (Eastern Time) on December 1, 2015 or such other time as agreed by the Company and the Underwriter.
1. Representations
and Warranties of the Company, the Investment Adviser and the Administrator. The Company, the Investment Adviser and the Administrator,
jointly and severally, represent and warrant to and agree with the Underwriter as of the date hereof, the Applicable Time and the
Closing Date (as defined below) (and, if any Additional Notes are purchased, at the Option Closing Date (as defined below)) as
follows:
(a) The
Registration Statement has been filed with, and declared effective by, the Commission; no notice of objection of the Commission
to the use of such Registration Statement or any post-effective amendment thereto or the use of the Preliminary Prospectus or the
Prospectus has been received by the Company; no stop order suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or, to the knowledge of the Company, threatened by the Commission. The Preliminary
Prospectus and the Prospectus delivered to the Underwriter for use in connection with this offering were identical in all material
respects to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T. At the time of filing the Registration Statement and any post-effective amendments thereto, and at the date
hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 of the Rules and Regulations.
(b) At
the respective times the Registration Statement and any post-effective amendment thereto (filed before the Closing Date) became
or becomes effective and at the Closing Date (and, if any Additional Notes are purchased, at the Option Closing Date), the Registration
Statement and any post-effective amendment thereto complied and will comply in all material respects with the requirements of the
Acts and the Rules and Regulations and did not and will not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein not misleading. Neither the Prospectus nor any amendment
or supplement thereto, as of the respective dates thereof and at the Closing Date (and, if any Additional Notes are purchased,
at the Option Closing Date), contained or will contain an untrue statement of a material fact or omitted or will omit to state
a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The Time of Sale Prospectus, at the Applicable Time, did not contain an untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading. The representations and warranties in this paragraph
do not apply to statements in or omissions from the Registration Statement, the Time of Sale Prospectus or the Prospectus made
solely in reliance upon and in conformity with written information furnished to the Company by the Underwriter for use in the Registration
Statement, the Time of Sale Prospectus or Prospectus.
(c) The
Company has been duly organized and is validly existing in good standing as a corporation under the laws of the State of Delaware.
The Company has full power and authority to own its property and to conduct its business as described in the Registration Statement,
the Time of Sale Prospectus and the Prospectus and to enter into and perform its obligations under this Agreement and the Indenture,
and is in good standing and is duly qualified to transact business in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or to
be in good standing would not have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings,
business or operations of the Company (a “Company Material Adverse Effect”). The Company has no subsidiaries
other than Eagle Point Credit Company Sub LLC and Eagle Point Credit Company Sub (Cayman) Ltd.
(d) The
Company is, and at all times through the completion of the transactions contemplated hereby will be, in compliance in all material
respects with the applicable terms and conditions of the Acts and the Rules and Regulations. To the Company’s knowledge,
no person is serving or acting as an officer or director of, or investment adviser to, the Company except in accordance with the
provisions of the Investment Company Act and the Investment Advisers Act of 1940, as amended, including the rules and regulations
thereunder (the “Advisers Act”). Except as otherwise disclosed in the Registration Statement, the Time of Sale
Prospectus and the Prospectus, to the Company’s knowledge, no director of the Company is an “interested person”
of the Company or an “affiliated person” of the Underwriter (each as defined in the Investment Company Act).
(e) Each
of this Agreement and the Company Agreements has been duly authorized by the Company. Each Company Agreement complies with all
applicable provisions of the Acts, the Advisers Act and the applicable Rules and Regulations. Each Company Agreement has been duly
executed and delivered by the Company and (assuming the due and valid authorization, execution and delivery by the other parties
thereto) represents a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution may be limited by federal or state securities laws or principles of public policy
and subject to the qualification that the enforceability of the Company’s obligations thereunder may be limited by bankruptcy,
fraudulent conveyance, insolvency, reorganization, receivership, moratorium, and other laws relating to or affecting creditors’
rights generally and by general equitable principles (including without limitation the availability of specific performance or
injunctive relief and the application of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement
is considered in a proceeding in equity or at law; provided that neither the Company nor the Investment Adviser makes any
representation or warranty as to the effect on the representations and warranties expressed herein of (i) the compliance and noncompliance
of any other party (other than the Company and the Investment Adviser) to any of the foregoing Company Agreements with state, federal
or other laws or regulations applicable to it or them or (ii) the legal or regulatory status or nature of the business of such
other party.
(f) The
Indenture has been duly authorized and, when executed and delivered by the Company and the Trustee, will constitute a valid, binding
and enforceable agreement of the Company, subject, as to enforcement, to applicable bankruptcy, fraudulent conveyance, insolvency,
reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and to general
equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(g) The
Notes have been duly authorized and, when executed and authenticated in the manner provided for in the Indenture and delivered
against payment therefor as provided herein, will be legal, valid and binding obligations of the Company enforceable in accordance
with their terms, subject, as to enforcement, to applicable bankruptcy, fraudulent conveyance, insolvency, reorganization, receivership,
moratorium, and other laws relating to or affecting creditors’ rights generally and to general equitable principles (regardless
of whether enforcement is considered in a proceeding in equity or at law), and will conform in all material respects to the description
thereof under the heading “Description of Our Debt Securities” contained in the Registration Statement and under the
heading “Description of the Notes” contained in the Time of Sale Prospectus and the Prospectus; the offer and sale
of the Notes as contemplated hereby has been duly approved by all necessary corporate or other action of the Company; and other
than as contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus, none of the Company or any
of its subsidiaries has issued any debt securities or entered into any agreement or arrangement relating to the issuance of any
debt securities.
(h) None
of (1) the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement,
the Indenture and each Company Agreement, or (2) the issue and sale by the Company of the Notes as contemplated by this Agreement
conflicts with or will conflict with, result in, or constitute a violation, breach of or default under, (x) the certificate
of incorporation of the Company, as amended to date (the “Certificate of Incorporation”), or the amended and
restated bylaws of the Company, as amended to date (the “Bylaws”), (y) any agreement, indenture, note,
bond, license, lease or other instrument or obligation binding upon the Company that is material to the Company or (z) any
law, rule or regulation applicable to the Company or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Company, whether foreign or domestic; except, with respect to clauses (y) or (z), any contravention which
would have neither (i) a Company Material Adverse Effect or (ii) a material adverse effect on the consummation of the
transactions contemplated by this Agreement; provided that no representation or warranty is made with respect to compliance
with the laws of any jurisdiction outside of the United States in connection with the offer or sale of the Notes in such jurisdiction
by the Underwriter.
(i) No
consent, approval, authorization, order or permit of, license from, or qualification with, any governmental body, agency or authority,
self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained by the Company
prior to the Closing Date for the performance by the Company of its obligations under this Agreement, the Indenture or the Company
Agreements, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act or
the applicable Rules and Regulations, (ii) the rules and regulations of the Financial Industry Regulatory Authority, Inc.,
including legacy NASD rules (“FINRA”), or of the New York Stock Exchange (the “NYSE”), (iii) the
securities or “blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale
of the Notes or (iv) such as which the failure to obtain would have neither (x) a Company Material Adverse Effect or
(y) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(j) This
Agreement, the Certificate of Incorporation, the Bylaws and the Company Agreements conform in all material respects to the descriptions
thereof contained in each of the Registration Statement, the Time of Sale Prospectus and the Prospectus.
(k) This
Agreement, the Indenture, the Certificate of Incorporation and the Bylaws comply with all applicable provisions of the Acts and
the applicable Rules and Regulations, and all approvals of such documents required under the Investment Company Act by the Company’s
stockholders and, to the extent applicable, Board of Directors have been obtained and are in full force and effect.
(l) The
Company Agreements are in full force and effect and neither the Company nor, to the knowledge of the Company, any other party to
any such agreement is in default thereunder, and no event has occurred which with the passage of time or the giving of notice or
both would constitute a default by the Company thereunder, and the Company is not currently in breach of, or in default under,
any other written agreement or instrument to which it or its property is bound or affected, the default under or breach of which
could reasonably be expected to have a Company Material Adverse Effect.
(m) The
shares of Common Stock and the shares of 7.75% Series A Term Preferred Stock due 2022, par value $0.001 per share (the “Preferred
Stock”), outstanding prior to the issuance of the Firm Notes have been duly authorized and are validly issued, fully
paid and non-assessable. None of the outstanding shares of Common Stock, Preferred Stock or any other capital stock of the Company
was issued in violation of the preemptive or other similar rights of any securityholder of the Company. Other than as contemplated
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital
stock of or ownership interests in the Company are outstanding.
(n) The
Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended.
(o) An
application for listing the Notes on the NYSE has been filed by the Company.
(p) Each
Omitting Prospectus (i) complies in all material respects with the requirements of Rule 482 and (ii) complied and will
comply in all material respects with the Acts, the Rules and Regulations and the rules and regulations of FINRA, as applicable.
Except for the Omitting Prospectuses identified on Schedule II hereto, the Company has not prepared, used or referred to and will
not, without the Underwriter’s prior consent, prepare, use or refer to any Omitting Prospectus.
(q) The
questionnaires relating to FINRA Rule 5110 provided to the Underwriter or its counsel in connection with letters, filings or other
supplemental information provided to FINRA pursuant to FINRA’s conduct rules (Rules 5100, 5110 or 5121) are, to the Company’s
knowledge, true and correct in all material respects.
(r) There
has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change,
in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Company, and there have
been no transactions entered into by the Company which are material to the Company, other than those in the ordinary course of
its business or as described in the Time of Sale Prospectus.
(s) There
are no legal or governmental proceedings pending or, to the knowledge of the Company, threatened to which the Company is a party
or to which any of the properties of the Company is subject (i) other than proceedings accurately described in all material
respects in the Time of Sale Prospectus and the Prospectus and proceedings that would not have a Company Material Adverse Effect,
or that would not have a material adverse effect on the power or ability of the Company to perform its obligations under this Agreement
or the Indenture or to consummate the transactions contemplated by the Time of Sale Prospectus or the Prospectus or (ii) that
are required to be described in the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described.
Each officer signing or delivering a certificate pursuant to Section 6(b) hereof may rely upon his or her knowledge as to legal
or governmental proceedings threatened.
(t) The
statements in the Registration Statement and the Time of Sale Prospectus under the headings “Prospectus Summary—Operating
and Regulatory Structure,” “The Adviser and the Administrator—Investment Advisory Agreement,” “The
Adviser and the Administrator—The Administrator and the Administration Agreement,” “Regulation as a Closed-End
Management Investment Company,” “U.S. Federal Income Tax Matters,” “Description of Our Capital Stock,”
“Description of Our Debt Securities” and “Description of the Notes” insofar as such statements summarize
legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements,
documents or proceedings.
(u) The
Company has all necessary consents, authorizations, approvals, orders (including exemptive orders), licenses, certificates, permits,
qualifications and registrations of and from, and has made all declarations and filings with, all governmental authorities, self-regulatory
organizations and courts and other tribunals, whether foreign or domestic, to own and use its assets and to conduct its business
in the manner described in the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain or file
the foregoing would not result in a Company Material Adverse Effect.
(v) Each
of the Preliminary Prospectus, the Registration Statement and the Prospectus, as of the respective dates thereof, and the Time
of Sale Prospectus, as of the Applicable Time, complied as to form in all material respects with the Acts and the applicable Rules
and Regulations.
(w) The
financial statements included in the Registration Statement, the Time of Sale Prospectus and the Prospectus, together with the
related notes thereto (collectively, the “Company Financial Statements”), present fairly in all material respects
the financial condition of the Company as of the respective dates indicated, comply as to form in all material respects with the
requirements of Regulation S-X under the Securities Act and have been prepared in conformity with generally accepted accounting
principles (“GAAP”). The supporting schedules to such Company Financial Statements, if any, present fairly
in accordance with GAAP the information required to be stated therein. KPMG LLP, whose report appears in the Registration Statement,
the Time of Sale Prospectus and the Prospectus and who have certified the audited Company Financial Statements and supporting schedules,
if any, included in the Registration Statement, is an independent registered public accounting firm within the meaning of, and
as required by, the Acts and the applicable Rules and Regulations.
(x) There
are no material restrictions, limitations or regulations with respect to the ability of the Company to invest its assets as described
in the Registration Statement, the Time of Sale Prospectus and the Prospectus, other than as described therein.
(y) Neither
the Company nor any of its agents or representatives (other than the Underwriter in its capacity as such) has prepared, made, used,
authorized, approved or referred to any written communication that constitutes an offer to sell or solicitation of an offer to
buy the Notes other than (i) the Registration Statement, the Preliminary Prospectus and the Prospectus, and any amendment
or supplement to any of the foregoing, and (ii) the Omitting Prospectuses, if any, identified on Schedule II hereto. All other
promotional material (including “road show slides” or “road show scripts”) prepared by the Company or the
Investment Adviser for use in connection with the offering and sale of the Notes (“Road Show Material”) is not
inconsistent with the Registration Statement, the Preliminary Prospectus or the Prospectus and, when taken together with the Time
of Sale Prospectus, at the Applicable Time, did not contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.
All advertisements authorized by the Company in writing for use in the offering of the Notes complied and will comply in all material
respects with the requirements of the Acts, the applicable Rules and Regulations and the applicable rules and regulations of FINRA,
including legacy NASD rules, and there are no such advertisements other than (i) the Omitting Prospectuses identified in Schedule
II hereto and (ii) any advertisement that complies with Rule 135a of the Rules and Regulations.
(z) Subsequent
to the respective dates as of which information is given in each of the Registration Statement, the Time of Sale Prospectus and
the Prospectus, (i) the Company has not incurred any material liability or obligation, direct or contingent, nor entered into
any material transaction, (ii) the Company has not purchased any of its outstanding capital stock, nor declared, paid or otherwise
made any dividend or distribution of any kind on its capital stock, other than ordinary and customary dividends, and (iii) there
has not been any material change in the capital stock, short-term debt or long-term debt of the Company, except in each case as
contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus, respectively.
(aa) The
Company owns or possesses, or can acquire on reasonable terms, all material patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks and trade names currently employed by them in connection with the business now operated
by it, and the Company has not received any notice of infringement of or conflict with asserted rights of others with respect to
any of the foregoing which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have
a Company Material Adverse Effect.
(bb) To
the extent that the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated by the Commission and the
NYSE thereunder (the “Sarbanes-Oxley Act”), have been applicable to the Company, there is and has been no failure
on the part of the Company to comply with any applicable provision of the Sarbanes-Oxley Act that would reasonably be expected
to have a Company Material Adverse Effect.
(cc) The
Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions
are executed in accordance with management’s general or specific authorizations and with the applicable requirements of the
Acts, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and
to maintain asset accountability and compliance with the books and records requirements under the Acts, (iii) access to assets
is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accountability
for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
Since the date of the Company’s most recent audited financial statements included in the Prospectus, there has been (i) no
material weakness in the Company’s internal control over financial reporting (whether or not remediated), (ii) no fraud,
whether or not material, that involves management or employees who have a role in the Company’s internal controls and (iii) no
change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to
materially affect, the Company’s internal control over financial reporting.
(dd) The
Company maintains “disclosure controls and procedures” (as such term is defined in Rule 30a-3 under the Investment
Company Act); such disclosure controls and procedures are effective as required by the Investment Company Act and the applicable
Rules and Regulations and the Company is not aware of any material weakness in such controls and procedures.
(ee) Any
statistical and market-related data included in the Registration Statement, the Time of Sale Prospectus and the Prospectus are
based on or derived from sources that the Company believes to be reliable and accurate.
(ff) There
are no contracts or documents which are required to be described in the Registration Statement, the Time of Sale Prospectus or
the Prospectus (or the documents incorporated by reference therein) or to be filed as exhibits thereto by the Securities Act or
the Investment Company Act which have not been so described and filed as required.
(gg) The
operations of the Company are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements and the money laundering statutes and the rules and regulations thereunder and any related or similar rules, regulations
or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving
the Company with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(hh) Neither
the Company, the Investment Adviser nor the Administrator nor, to the knowledge of the Company, any director, officer, agent, employee
or affiliate of the Company, the Investment Adviser or the Administrator is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the Foreign Corruption Practices Act of 1977, as amended, and the rules and
regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment
of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign
political office, in contravention of the FCPA and the Company, the Investment Adviser and the Administrator, and to the knowledge
of the Company, the Investment Adviser or the Administrator, their affiliates have conducted their businesses in compliance with
the FCPA and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue
to ensure, continued compliance therewith.
(ii) Neither
the Company, the Investment Adviser nor the Administrator nor, to the knowledge of the Company, any director, officer, agent, employee
or affiliate of the Company, the Investment Adviser or the Administrator is currently subject to any U.S. sanctions administered
by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”) and none of the Company, the
Investment Adviser and the Administrator will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise
make available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC.
(jj) The
Company is insured by insurers of recognized financial responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged; all policies of insurance insuring the Company or its business,
assets, employees, officers and directors, including the Company’s directors and officers errors and omissions insurance
policy and its fidelity bond required by Rule 17g-1 of the Rules and Regulations, are in full force and effect, and the Company
is in compliance with the terms of such policies and fidelity bond in all material respects; and there are no claims by the Company
under any such policies or fidelity bond as to which any insurance company is denying liability or defending under a reservation
of rights clause; the Company has not been refused any insurance coverage sought or applied for; and the Company has no reason
to believe that it will not be able to renew its existing insurance coverage and fidelity bond as and when such coverage and fidelity
bond expires or to obtain similar coverage and fidelity bond from similar insurers as may be necessary to continue its business
at a cost that would not result in a Company Material Adverse Effect, except as set forth in or contemplated in the Registration
Statement, the Time of Sale Prospectus and the Prospectus (exclusive of any supplement thereto).
(kk) Except
as set forth in or contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus, the Company (i) does
not have any material lending or other relationship with any bank or lending affiliate of the Underwriter (the description of such
arrangements and outstanding indebtedness thereunder is true, accurate and complete in all respects) and (ii) does not intend
to use any of the proceeds from the sale of the Notes hereunder to repay any outstanding debt owed to any affiliate of the Underwriter.
(ll) There
are no business relationships or related-party transactions involving the Company or any other person required to be described
in the Registration Statement, the Time of Sale Prospectus or the Prospectus which have not been described as required, it being
understood and agreed that the Company, the Investment Adviser and the Administrator make no representation or warranty with respect
to such relationships involving the Underwriter or any affiliate and any other person that have not been disclosed to the Company
by the Underwriter in connection with this offering.
(mm) None
of the Company, the Investment Adviser, the Administrator nor any of their affiliates has taken, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in,
the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Notes.
(nn) The
Company owns, leases or has rights to use all such properties as are necessary to the conduct of its operations as presently conducted.
(oo) The
Company operates in compliance in all material respects with the requirements to be taxed as, and has duly elected to be taxed
as (which election has not been revoked), a regulated investment company under Subchapter M of the Internal Revenue Code of 1986,
as amended (the “Code”). The Company intends to direct the investment of the net proceeds received by it from
the sale of the Notes in the manner specified in the Registration Statement, the Time of Sale Prospectus and the Prospectus under
the caption “Use of Proceeds” and in such a manner as to continue to comply with the requirements of Subchapter M of
the Code.
(pp) Each
investment held by the Company as of the date hereof, except as otherwise disclosed in the Registration Statement, the Time of
Sale Prospectus and the Prospectus, is, to the Company’s knowledge, current, in all material respects, with all its obligations
under the applicable terms of the investment, no event of default (or a default which with the giving of notice or the passage
of time would become an event of default) has occurred in respect of such investment, except to the extent that any such failure
to be current in any such obligations and any such default would not reasonably be expected to result in a Company Material Adverse
Effect.
Any certificate signed
by or on behalf of the Company and delivered to the Underwriter or its counsel in connection with the offering of the Notes shall
be deemed to a representation and warranty by the Company as to the matters covered therein to the Underwriter.
2. Representations
and Warranties of the Investment Adviser and the Administrator. The Investment Adviser and the Administrator represent and
warrant to and agree with the Underwriter as of the date hereof as follows:
(a) Each
of the Investment Adviser and the Administrator has been duly formed and is validly existing as a limited liability company in
good standing under the laws of the State of Delaware, respectively, with the power and authority to own its property and to conduct
its business as described in the Registration Statement, the Time of Sale Prospectus and the Prospectus and enter into this Agreement
and the other Company Agreements to which the Investment Adviser or the Administrator is a party, as the case may be, and is duly
qualified to transact business and is in good standing in each jurisdiction in which the conduct of its business or its ownership
or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the condition, financial or otherwise, or on the prospects, earnings, business or operations
of the Investment Adviser or the Administrator, as the case may be (an “Adviser/Administrator Material Adverse Effect”).
The Investment Adviser has no subsidiaries other than the Administrator, and the Administrator has no subsidiaries.
(b) The
Investment Adviser is duly registered as an investment adviser under the Advisers Act, and is not prohibited by the Advisers Act
or the Investment Company Act from acting under the Investment Advisory Agreement as an investment adviser to the Company as contemplated
by the Registration Statement, the Time of Sale Prospectus and the Prospectus, and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to the knowledge of the Investment Adviser, threatened by the
Commission.
(c) This
Agreement and the Company Agreements to which the Investment Adviser or the Administrator is a party, as the case may be, have
been duly authorized by the Investment Adviser and/or the Administrator, as applicable. This Agreement and each Company Agreement
to which the Investment Adviser or the Administrator is a party comply with the applicable provisions of the Acts, the Advisers
Act and the applicable Rules and Regulations. Each Company Agreement to which the Investment Adviser or the Administrator is a
party has been duly executed and delivered by the Investment Adviser or the Administrator, as applicable, and (assuming the due
and valid authorization, execution and delivery by the other parties thereto) represents a valid and binding agreement of the Investment
Adviser or the Administrator, as applicable, enforceable against the Investment Adviser or the Administrator, as applicable, in
accordance with its terms, except (a) as rights to indemnity and contribution may be limited by federal or state securities
laws or principles of public policy and subject to the qualification that the enforceability of the Investment Adviser’s
or the Administrator’s obligations thereunder, as applicable, may be limited by bankruptcy, fraudulent conveyance, insolvency,
reorganization, receivership, moratorium, and other laws relating to or affecting creditors’ rights generally and by general
equitable principles (including without limitation the availability of specific performance or injunctive relief and the application
of concepts of materiality, reasonableness, good faith and fair dealing) whether enforcement is considered in a proceeding in equity
or at law, and (b) in the case of the Investment Advisory Agreement, with respect to termination under the Investment Company
Act or the reasonableness or fairness of compensation payable thereunder.
(d) The
execution and delivery by the Investment Adviser and/or the Administrator, as applicable, of, and the performance by the Investment
Adviser and/or the Administrator, as applicable, of its obligations under, this Agreement does not conflict with or will conflict
with, result in, or constitute a violation, breach of or default under, (x) the limited liability company operating agreement
of the Investment Adviser and/or the Administrator, as applicable (y) any agreement, indenture, note, bond, license, lease
or other instrument or obligation binding upon the Investment Adviser and/or the Administrator, as applicable, that is material
to the Investment Adviser and/or the Administrator, as applicable, or (z) any law, rule or regulation applicable to the Investment
Adviser and/or the Administrator, as applicable, or any judgment, order or decree of any governmental body, agency or court having
jurisdiction over the Investment Adviser and/or the Administrator, whether foreign or domestic; except, with respect to clauses
(y) or (z), any contravention which would have neither (i) an Adviser/Administrator Material Adverse Effect or (ii) a
material adverse effect on the consummation of the transactions contemplated by this Agreement; provided that no representation
or warranty is made with respect to compliance with the laws of any jurisdiction outside of the United States in connection with
the offer or sale of the Notes in such jurisdiction by the Underwriter.
(e) No
consent, approval, authorization, order or permit of, license from, or qualification or registration with, any governmental body,
agency or authority, self-regulatory organization or court or other tribunal, whether foreign or domestic, is required to be obtained
by the Investment Adviser and/or the Administrator, as applicable, prior to the Closing Date for the performance by the Investment
Adviser and/or the Administrator, as applicable, of its obligations under this Agreement or any Company Agreement to which it is
a party, except such as have been obtained and as may be required by (i) the Acts, the Advisers Act, the Exchange Act or the
applicable Rules and Regulations, (ii) the rules and regulations of FINRA or of the NYSE, (iii) by the securities or
“blue sky” laws of the various states and foreign jurisdictions in connection with the offer and sale of the Notes
or (iv) such as which the failure to obtain would have neither (i) an Adviser/Administrator Material Adverse Effect nor
(ii) a material adverse effect on the consummation of the transactions contemplated by this Agreement.
(f) There
are no legal or governmental proceedings pending or, to the knowledge of the Investment Adviser and the Administrator, threatened
to which the Investment Adviser and/or the Administrator is a party or to which any of the properties of the Investment Adviser
and/or the Administrator is subject (i) other than proceedings accurately described in all material respects in the Registration
Statement, the Time of Sale Prospectus and the Prospectus and proceedings that would not have an Adviser/Administrator Material
Adverse Effect, as applicable, or that would not have a material adverse effect on the power or ability of the Investment Adviser
and/or the Administrator, as applicable, to perform its obligations under this Agreement or to consummate the transactions contemplated
by the Registration Statement, the Time of Sale Prospectus and the Prospectus or (ii) that are required to be described in
the Registration Statement, the Time of Sale Prospectus or the Prospectus and are not so described.
(g) There
are no contracts or documents which are required to be described in the Registration Statement, the Time of Sale Prospectus or
the Prospectus (or the documents incorporated by reference therein) or to be filed as exhibits thereto by the Securities Act or
by the Rules and Regulations which have not been so described and filed as required.
(h) Each
of the Investment Adviser and the Administrator has all necessary consents, authorizations, approvals, orders (including exemptive
orders), licenses, certificates, permits, qualifications and registrations of and from, and has made all declarations and filings
with, all governmental authorities, self-regulatory organizations and courts and other tribunals, whether foreign or domestic,
to own and use its assets and to conduct its business in the manner described in the Registration Statement, the Time of Sale Prospectus
and the Prospectus, except to the extent that the failure to obtain or file the foregoing would not result in an Adviser/Administrator
Material Adverse Effect.
(i) Each
of the Investment Adviser and Administrator has the financial resources available to it necessary for the performance of its services
and obligations as contemplated in the Registration Statement, the Time of Sale Prospectus and the Prospectus and by this Agreement
and each Company Agreement to which it is a party.
(j) The
Investment Advisory Agreement is in full force and effect and neither the Investment Adviser nor, to the knowledge of the Investment
Adviser, any other party to the Investment Advisory Agreement is in default thereunder, and no event has occurred which with the
passage of time or the giving of notice or both would constitute a default by the Investment Adviser under such document.
(k) Each
of the Investment Adviser and the Administrator are insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the businesses in which they are engaged; all policies of insurance
and any fidelity or surety bonds insuring the Investment Adviser or the Administrator or their respective businesses, assets, employees,
officers and directors are in full force and effect; the Investment Adviser and the Administrator are in compliance with the terms
of such policies and instruments in all material respects; there are no claims by the Investment Adviser or the Administrator under
any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights
clause; neither the Investment Adviser nor the Administrator has any reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have an Adviser/Administrator Material Adverse Effect.
(l) All
information furnished by the Investment Adviser or the Administrator for use in the Registration Statement, the Time of Sale Prospectus
and Prospectus, including, without limitation, the description of the Investment Adviser (the “Investment Adviser Information”
and the “Administrator Information,” respectively) does not, and on the Closing Date will not, contain any untrue
statement of a material fact or omit to state any material fact necessary to make such information not misleading (and in the case
of the Time of Sale Prospectus and the Prospectus, in light of the circumstances under which such information is provided).
(m) There
has not occurred any material adverse change, or any development reasonably likely to involve a prospective material adverse change,
in the condition, financial or otherwise, or in the prospects, earnings, business or operations of the Investment Adviser or the
Administrator from that set forth in the Registration Statement, the Time of Sale Prospectus and the Prospectus, and there have
been no transactions entered into by the Investment Adviser that are material to the Investment Adviser other than those in the
ordinary course of its business.
(n) Neither
the Investment Adviser nor the Administrator, nor any of its respective affiliates, has taken, directly or indirectly, any action
which constitutes or is designed to cause or result in, or which could reasonably be expected to constitute, cause or result in,
the stabilization or manipulation of the price of any security to facilitate the sale or resale of the Notes.
(o) The
operations of the Investment Adviser and the Administrator are and have been conducted at all times in compliance with applicable
Money Laundering Laws and no action, suit or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving the Investment Adviser or the Administrator with respect to the Money Laundering Laws is pending or, to the
knowledge of the Investment Adviser or the Administrator, threatened.
(p) Neither
the Investment Adviser nor the Administrator nor, to their knowledge, any director, officer, agent, employee or affiliate of the
Investment Adviser or the Administrator is aware of or has taken any action, directly or indirectly, that would result in a violation
by such persons of the FCPA, including, without limitation, making use of the mails or any means or instrumentality of interstate
commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term
is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention
of the FCPA and the Company, the Investment Adviser or the Administrator, and the Investment Adviser or the Administrator, its
affiliates have conducted their businesses in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(q) Neither
the Investment Adviser nor the Administrator nor, to its knowledge, any director, officer, agent, employee or affiliate of the
Investment Adviser or the Administrator is currently subject to any U.S. sanctions administered by OFAC and neither the Investment
Adviser or the Administrator will directly or indirectly use the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered by OFAC.
(r) The
Investment Adviser maintains a system of internal controls sufficient to provide reasonable assurance that (i) transactions
effectuated by it under the Investment Advisory Agreement are executed in accordance with its management’s general or specific
authorization and (ii) access to the Company’s assets is permitted only in accordance with its management’s general
or specific authorization.
(s) The
Administrator maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions
for which it has bookkeeping and record keeping responsibility under the Administration Agreement are recorded as necessary to
permit preparation of the Company’s financial statements in conformity with GAAP and to maintain accountability for the Company’s
assets and (ii) the recorded accountability for such assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
Any certificate signed
by or on behalf of the Investment Adviser or the Administrator and delivered to the Underwriter or its counsel in connection with
the offering of the Notes shall be deemed to a representation and warranty by the Investment Adviser or the Administrator, as applicable,
as to the matters covered therein to the Underwriter.
3. Agreements
to Sell and Purchase. The Company hereby agrees to sell to the Underwriter, and the Underwriter, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter stated, agrees to purchase from the Company $25,000,000
aggregate principal amount of Firm Notes at the purchase price of 97.00% of the aggregate principal amount of the Firm Notes (the
“Purchase Price”).
On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and conditions, the Company agrees to sell to the Underwriter
the Additional Notes and the Underwriter shall have the right to purchase the Additional Notes, with the same terms and CUSIP number
as the Firm Notes, at the Purchase Price, plus interest, if any, accrued from the Closing Date to, but excluding, the applicable
Option Closing Date, provided that no such Additional Notes may be issued and sold unless they will be fungible with, and constitute
the same series as, the Firm Notes for U.S. federal income tax purposes. The Underwriter may exercise this right in whole or from
time to time in part by giving written notice to the Company not later than 30 days after the date of this Agreement. Any exercise
notice shall specify the aggregate principal amount of Additional Notes to be purchased by the Underwriter and the date on which
such notes are to be purchased. Each purchase date must be at least one business day after the written notice is given and may
not be earlier than the closing date for the Firm Notes and not later than ten business days after the date of such notice. Additional
Notes may be purchased as provided in Section 5 hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Notes.
The Company hereby agrees
that, without the prior written consent of the Underwriter, it will not, during the period ending 30 days after the date of the
Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
debt securities issued or guaranteed by the Company or securities convertible into or exercisable or exchangeable for debt securities
issued or guaranteed by the Company or (2) enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of any debt securities issued or guaranteed by the Company whether any such
transaction described in clause (1) or (2) above is to be settled by delivery of debt securities issued or guaranteed by the Company
or such other securities, in cash or otherwise, or (3) file any registration statement with the Commission relating to the
offering of any debt securities issued or guaranteed by the Company or any securities convertible into or exercisable or exchangeable
for debt securities issued or guaranteed by the Company. The agreements contained in this paragraph shall not apply to the Notes
to be sold hereunder.
4. Terms
of Public Offering. The Company, the Investment Adviser and the Administrator each understands that the Underwriter proposes
to make a public offering of the Notes as soon as the Underwriter deems advisable after this Agreement has been executed and delivered.
The Company, the Investment Adviser and the Administrator each further understands that the Notes are to be offered to the public
at 100% of the principal amount (the “Public Offering Price”), and to certain dealers selected by the Underwriter
at a price that represents a concession not in excess of $0.50.
5. Payment
and Delivery. Payment for the Firm Notes shall be made to the Company in Federal or other funds immediately available to a
bank account designated by the Company against delivery of such Firm Notes for the account of the Underwriter at 12:00 P.M. (New
York City time), on December 4, 2015, or at such other time on the same or such other date as shall be designated in writing by
the Underwriter. The time and date of such payment are herein referred to as the “Closing Date.”
Payment for any Additional
Notes shall be made to the Company in Federal or other funds immediately available to a bank account designated by the Company
against delivery of such Additional Notes for the account of the Underwriter at 10:00 A.M. (New York City time), on the date specified
in the corresponding notice described in Section 3 or at such other time on the same or on such other date, in any event not later
than January 15, 2016, as shall be agreed by the Underwriter and the Company. The time and date of any such payment for Additional
Notes are herein referred to as the “Option Closing Date.”
The Firm Notes and Additional
Notes shall be registered in such names and in such denominations as the Underwriter shall request in writing not later than one
full business day prior to the Closing Date or the applicable Option Closing Date, as the case may be. The Firm Notes and Additional
Notes shall be delivered to the Underwriter through the facilities of DTC on the Closing Date or an Option Closing Date, as the
case may be, for the account of the Underwriter.
6. Conditions
to the Underwriter’s Obligations. The respective obligations of the Company, the Investment Adviser and the Administrator,
and the obligations of the Underwriter, hereunder are subject to the condition that the Registration Statement has become effective
and at the Closing Date no stop order suspending the effectiveness of the Registration Statement shall have been issued under the
Securities Act and no proceedings with respect thereto shall have been initiated or, to the Company’s knowledge, threatened
by the Commission, and any request on the part of the Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriter.
The obligations of the
Underwriter are subject to the following further conditions:
(a) Subsequent
to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any
development involving a prospective change, in the condition, financial or otherwise, or in the prospects, earnings, business or
operations of the Company, the Investment Adviser or the Administrator, from that set forth in the Time of Sale Prospectus that,
in the Underwriter’s reasonable judgment, is material and adverse and that makes it, in the Underwriter’s reasonable
judgment, impracticable to market the Notes on the terms and in the manner contemplated in the Time of Sale Prospectus.
(b) The
Underwriter shall have received on the Closing Date a certificate, dated the Closing Date and signed by an executive officer of
the Company, to the effect that the representations and warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the agreements and satisfied all of the conditions on its
part to be performed or satisfied hereunder on or before the Closing Date. The Underwriter shall also have received on the Closing
Date a certificate, dated the Closing Date and signed by an executive officer of the Investment Adviser, to the effect that the
representations and warranties of the Investment Adviser contained in this Agreement are true and correct as of the Closing Date
and that the Investment Adviser has complied with all of the agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date. The Underwriter shall also have received on the Closing Date a certificate,
dated the Closing Date and signed by an authorized person of the Administrator, to the effect that the representations and warranties
of the Administrator contained in this Agreement are true and correct as of the Closing Date and that the Administrator has complied
with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before
the Closing Date.
(c) Each
of the Investment Adviser, the Administrator and the Company shall have performed all of its respective obligations to be performed
hereunder on or prior to the Closing Date.
(d) The
Underwriter shall have received on the Closing Date an opinion and negative assurance letter of Dechert LLP, counsel for the Company,
the Investment Adviser and the Administrator, dated the Closing Date, set forth substantially in the form of Exhibit A hereto.
(e) The
Underwriter shall have received on the Closing Date the favorable opinion of Morrison & Foerster LLP, counsel for the Underwriter,
dated the Closing Date, and covering such matters as the Underwriter shall reasonably request.
(f) The
Underwriter shall have received, on each of the date hereof and the Closing Date, a letter dated the date hereof or the Closing
Date, as the case may be, in form and substance satisfactory to the Underwriter, from KPMG LLP, independent registered public accountants,
containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters
with respect to the financial statements and certain financial information contained in the Registration Statement, the Time of
Sale Prospectus and the Prospectus; provided that the letter delivered on the Closing Date shall use a “cut-off date”
not earlier than the date hereof.
(g) All
filings, applications and proceedings taken by the Company, the Investment Adviser and the Administrator in connection with the
registration of the Notes under the Securities Act and the applicable Rules and Regulations shall be satisfactory in form and substance
to the Underwriter and its counsel.
(h) No
action, suit, proceeding, inquiry or investigation shall have been instituted or threatened by the Commission which would adversely
affect the Company’s standing as a registered investment company under the Investment Company Act or the standing of the
Investment Adviser as a registered investment adviser under the Advisers Act.
(i) The
Company shall have applied to have the Notes listed for trading on the NYSE.
(j) The
Underwriter shall have obtained a No Objections Letter from FINRA regarding the fairness and reasonableness of the underwriting
terms and arrangements.
The obligation of the
Underwriter to purchase Additional Notes hereunder is subject to the delivery to the Underwriter on the applicable Option Closing
Date of such documents as the Underwriter may reasonably request with respect to the good standing of the Company, the Investment
Adviser and the Administrator, the due authorization and issuance of the Additional Notes to be sold on such Option Closing Date
and other matters related to the issuance of such Additional Notes, and officers’ certificates to the effect set forth in
Section 6(b), opinions of Dechert LLP to the effect set forth in Section 6(d), and comfort letters of KPMG LLP to the effect set
forth in Section 6(f), except that such certificates, opinions and comfort letters shall be dated as of the applicable Option Closing
Date and statements and opinions above contemplated to be given as of the Closing Date shall instead be made and given as of such
Option Closing Date.
7. Covenants
of the Company, the Investment Adviser and the Administrator. In further consideration of the agreements of the Underwriter
herein contained, the Company covenants and agrees, and the Investment Adviser and the Administrator, covenant and agree with the
Underwriter as follows:
(a) To
notify the Underwriter as soon as practicable, and confirm such notice in writing, of the occurrence of any event during the period
mentioned in Section 7(f) below which in the judgment of the Company makes any statement in the Registration Statement, the
Time of Sale Prospectus, any Omitting Prospectus or the Prospectus untrue in any material respect or which requires the making
of any change in or addition to the Registration Statement, the Time of Sale Prospectus, any Omitting Prospectus or the Prospectus
in order to make the statements therein not misleading in any material respect. If at any time the Commission shall issue any order
suspending the effectiveness of the Registration Statement, the Company will use its best efforts to obtain the withdrawal of such
order at the earliest possible moment.
(b) Prior
to the termination of the offering of the Notes, to comply with the requirements of Rule 430C and to promptly notify the Underwriter,
and confirm the notice in writing, (i) when the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment to the Registration Statement shall be declared or become effective, or when any Preliminary Prospectus, the Prospectus
or any Omitting Prospectus or any amendment or supplement to any of the foregoing shall have been filed, (ii) of the receipt of
any comments from the Commission relating to the Registration Statement (and shall promptly furnish the Underwriter with a copy
of any comment letters and any transcript of oral comments, and shall furnish the Underwriter with copies of any written responses
thereto a reasonable amount of time prior to the proposed filing thereof with the Commission and will not file any such response
to which the Underwriter or its counsel shall reasonably object), (iii) if the Company becomes the subject of a proceeding under
Section 8A of the Securities Act in connection with the offering of the Notes and (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary
Prospectus, the Prospectus or any Omitting Prospectus or any amendment or supplement to any of the foregoing, or any notice from
the Commission objecting to the use of the form of the Registration Statement or any post-effective amendment thereto, or of the
suspension of the qualification of the Notes for offering or sale in any jurisdiction or of the loss or suspension of any purposes.
(c) To
furnish to the Underwriter in New York City, without charge, prior to 10:00 A.M. (New York City time) on the business day next
succeeding the date of this Agreement and during the period mentioned in Section 7(f) below, as many copies of the Preliminary
Prospectus, Prospectus and any supplements and amendments thereto or to the Registration Statement as the Underwriter may reasonably
request.
(d) Prior
to the termination of the offering of the Notes, before amending or supplementing the Registration Statement, the Preliminary Prospectus
or the Prospectus, to furnish to the Underwriter a copy of each such proposed amendment or supplement and not to file any such
proposed amendment or supplement to which the Underwriter reasonably objects, and to file with the Commission within the applicable
period specified in Rule 497 under the Securities Act any prospectus required to be filed pursuant thereto.
(e) To
furnish to the Underwriter a copy of each proposed Omitting Prospectus to be prepared by or on behalf of, used by or referred to
by the Company and not to use or refer to any proposed Omitting Prospectus to which the Underwriter reasonably objects.
(f) If
(i) the Time of Sale Prospectus is being used to solicit offers to buy the Notes at a time when the Prospectus is not yet available
to prospective purchasers and (ii) (A) any event shall occur or condition exist as a result of which it is necessary to amend or
supplement the Time of Sale Prospectus in order to make the statements therein, in the light of the circumstances, not misleading,
or (B) any event shall occur or condition exist as a result of which the Time of Sale Prospectus materially conflicts with the
information contained in the Registration Statement then on file, or (C) in the reasonable opinion of either counsel for the Underwriter
or counsel for the Company, it is necessary to amend or supplement the Time of Sale Prospectus to comply with applicable law, forthwith
to prepare, file with the Commission and furnish, at its own expense, to the Underwriter and to any dealer upon request, either
amendments or supplements to the Time of Sale Prospectus so that the statements in the Time of Sale Prospectus as so amended or
supplemented will not, in the light of the circumstances when delivered to a prospective purchaser, be misleading or so that the
Time of Sale Prospectus, as amended or supplemented, will no longer materially conflict with the Registration Statement, or so
that the Time of Sale Prospectus, as amended or supplemented, will comply with applicable law, as applicable.
(g) The
Company will use the net proceeds received by it from the sale of the Notes in the manner specified in the Registration Statement
and the Time of Sale Prospectus.
(h) The
Company and the Investment Adviser will not take any action designed to cause or result in the manipulation of the price of any
security of the Company to facilitate the sale of Notes in violation of the Acts or the Exchange Act and the applicable Rules and
Regulations, or the securities or “blue sky” laws of the various states and foreign jurisdictions in connection with
the offer and sale of Notes.
(i) If,
during such period after the first date of the public offering of the Notes as in the reasonable opinion of either counsel for
the Underwriter or counsel for the Company, the Prospectus is required by law to be delivered in connection with sales by the Underwriter
or any dealer, any event shall occur or condition exist as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the reasonable opinion of either counsel for the Underwriter or counsel for the Company, it is necessary
to amend or supplement the Prospectus to comply with applicable law, forthwith to prepare, file with the Commission and furnish,
at its own expense, to the Underwriter and to dealers (whose names and addresses the Underwriter will furnish to the Company) to
which Notes may have been sold by the Underwriter and to any other dealers upon request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or supplemented will not, in the light of the circumstances when
the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus, as amended or supplemented, will comply with
law, as applicable.
(j) To
endeavor to qualify the Notes for offer and sale under the securities or “blue sky” laws of such jurisdictions as the
Underwriter shall reasonably request; provided, however, that the Company shall not be obligated to file any general consent
of service of process or to qualify as a foreign entity or as a dealer in securities in any jurisdiction in which it is not so
qualified or to subject itself to taxation in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(k) Whether
or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, to pay or cause to be paid
all expenses incident to the performance of the obligations of the Company and the Investment Adviser under this Agreement, including:
(i) the fees, disbursements and expenses of the Company’s counsel and the Company’s accountants in connection with
the registration and delivery of the Notes under the Securities Act and all other fees or expenses in connection with the preparation
and filing of the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus, the Prospectus, and any Omitting
Prospectus prepared by or on behalf of, used by, or referred to by the Company and amendments and supplements to any of the foregoing,
including all printing costs associated therewith, and the mailing and delivering of copies thereof to the Underwriter and dealers,
in the quantities hereinabove specified, (ii) all costs and expenses related to the preparation, issuance, execution, authentication
and delivery of the Notes to the Underwriter, (iii) the cost of printing or producing any “blue sky” memorandum in
connection with the offer and sale of the Notes under state securities laws and all expenses in connection with the qualification
of the Notes for offer and sale under state securities laws as provided in Section 7(j) hereof, including filing fees and the reasonable
fees and disbursements of counsel for the Underwriter in connection with such qualification and in connection with the “blue
sky” memorandum, (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriter incurred in
connection with the review and qualification of the offering of the Notes by FINRA in an amount not to exceed $5,000, (v) all costs
and expenses incident to listing the Notes on the NYSE, (vi) all costs and expenses of qualifying the Notes for inclusion in the
book-entry settlement system of DTC, (vii) the fees and disbursements of the Trustee, (viii) the fees paid to Egan-Jones Ratings
Company in connection with the rating of the Notes, (ix) the costs and expenses of the Company relating to investor presentations
on any “road show” undertaken in connection with the marketing of the offering of the Notes, including, without limitation,
expenses associated with the preparation or dissemination of any electronic road show, expenses associated with production of road
show slides and graphics, the reasonable fees and expenses of any consultants engaged in connection with the road show presentations
with the prior approval of the Company, and the travel and lodging expenses of the representatives and officers of the Company
and any such consultants, (x) the document production charges and expenses associated with printing this Agreement and (xi) all
other costs and expenses of the Company incident to the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section 7(k). It is understood, however, that except as provided in this Section and Section 8
entitled “Indemnity and Contribution,” the Underwriter will pay all of its costs and expenses, including fees and disbursements
of their counsel, transfer taxes payable on resale of any of the Notes by them, the travel and lodging expenses of the Underwriter
in connection with any road show presentations, and any advertising expenses connected with any offers it may make.
If this Agreement shall
be terminated by the Underwriter because of any failure or refusal on the part of the Company, the Investment Adviser or the Administrator
to comply with the terms or to fulfill any of the conditions of this Agreement, or if for any reason the Company, the Investment
Adviser or the Administrator shall be unable to perform its obligations under this Agreement, the Company, the Investment Adviser
and the Administrator, jointly and severally, will reimburse the Underwriter for all out-of-pocket accountable expenses (including
the reasonable fees and disbursements of their counsel) actually incurred by the Underwriter in connection with this Agreement
or the offering contemplated hereunder.
(l) The
Company will comply with all applicable securities and other applicable laws, rules and regulations, including, without limitation,
the Sarbanes-Oxley Act, and will use reasonable efforts to cause the Company’s directors and officers, in their capabilities,
as such, to comply with such laws, rules and regulations, including, without limitation, the provisions of Sarbanes-Oxley Act.
(m) The
Company will use reasonable best efforts to comply with the requirements of Subchapter M of the Code to qualify as a regulated
investment company under the Code, with respect to any fiscal year in which the Company is an investment company registered under
the Investment Company Act.
(n) The
Company, the Investment Adviser and the Administrator will use their reasonable efforts to perform all of the agreements required
of them by this Agreement and discharge all conditions of theirs to closing as set forth in this Agreement.
(o) Before
using, approving or referring to any Road Show Material, the Company will furnish to the Underwriter and its counsel a copy of
such material for review and will not make, prepare, use authorize, approve or refer to any such material to which the Underwriter
reasonably objects.
(p) As
soon as practicable, the Company will make generally available to its security holders and to the Underwriter an earnings statement
or statements of the Company which will satisfy the provisions of Section 11(a) of the Act and Rule 158 under the Act.
(q) The
Company will use its best efforts to effect the listing of the Notes on the NYSE within 30 days of delivery of the Notes pursuant
to this Agreement and to maintain such listing.
8. Indemnity
and Contribution.
(a) Each
of the Company, the Investment Adviser and the Administrator, jointly and severally, agree to indemnify and hold harmless the Underwriter,
each person, if any, who controls the Underwriter within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act, each selling agent of the Underwriter and each director, officer, shareholder or affiliate of the Underwriter
within the meaning of Rule 405 under the Rules and Regulations (each, an “Underwriter Indemnified Party”) from
and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably
incurred in connection with defending or investigating any such action or claim), caused by, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, the
Preliminary Prospectus, any Omitting Prospectus, any Road Show Material, the Time of Sale Prospectus, or the Prospectus or any
amendment or supplement thereto, or caused by any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities
are caused by any such untrue statement or omission or alleged untrue statement or omission based upon written information furnished
to the Company by the Underwriter expressly for use therein.
(b) The
Underwriter agrees to indemnify and hold harmless each of the Company, the Investment Adviser and the Administrator, and each of
their respective partners, directors, trustees, managers, members and shareholders (as the case may be), and each officer of the
Company who signs the Registration Statement and each person, if any, who controls the Company, the Investment Adviser and/or the
Administrator within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each,
a “Company Indemnified Party”) to the same extent as the foregoing indemnity from the Company, the Investment
Adviser and the Administrator to the Underwriter, but only with reference to written information relating to the Underwriter furnished
to the Company by the Underwriter expressly for use in the Registration Statement, as originally filed with the Commission, or
any amendment thereof, the Preliminary Prospectus, any Omitting Prospectus, any Road Show Material or the Time of Sale Prospectus.
(c) In
case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity
may be sought pursuant to Section 8(a) or 8(b), such person (the “indemnified party”) shall promptly notify
the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying
party, upon request of the indemnified party, shall retain counsel reasonably satisfactory to the indemnified party to represent
the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements
reasonably incurred of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the use of
counsel chosen by the indemnifying party to represent the indemnified party would present such counsel with an actual conflict
of interest, or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying
party and the indemnified party and the indemnified party shall have reasonably concluded that there may be legal defenses available
to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party. It
is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with
any proceeding or related proceedings in the same jurisdiction, be liable for (i) the fees and expenses reasonably incurred
of more than one separate firm (in addition to any local counsel) for all Underwriter Indemnified Parties, collectively, and (ii) the
fees and expenses reasonably incurred of more than one separate firm (in addition to any local counsel) for all Company Indemnified
Parties, collectively. In the case of any such separate firm for the Underwriter Indemnified Parties, such firm shall be designated
in writing by the Underwriter. In the case of any such separate firm for the Company Indemnified Parties, such firm shall be designated
in writing by the Company. The indemnifying party shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there is a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified
party for the reasonable fees and expenses of counsel as contemplated by the second and third sentences of this Section 8(c),
the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent
if (i) such settlement is entered into more than 30 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the material terms of such settlement at least 30 days prior to
such settlement being entered into, and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are the subject matter of such proceeding and does not include
a statement as to or an admission of fault, culpability or a failure to act by or on behalf of the indemnified party.
(d) To
the extent the indemnification provided for in Section 8(a) or 8(b) is unavailable to an indemnified party or insufficient
in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph,
in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, the Investment Adviser and/or the Administrator on the one hand and the Underwriter on the other
hand from the offering of the Notes or (ii) if the allocation provided by clause 8(d)(i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 8(d)(i) above but also
the relative fault of the Company, the Investment Adviser and/or the Administrator on the one hand and the Underwriter on the other
hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received by the Company, the Investment Adviser and/or the Administrator
on the one hand and the Underwriter on the other hand in connection with the offering of the Notes shall be deemed to be in the
same respective proportions as the net proceeds from the offering of the Notes (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the Underwriter, in each case as set forth in the table on the
cover of the Prospectus, bear to the aggregate Public Offering Price of the Notes. The relative fault of the Company, the Investment
Adviser and/or the Administrator on the one hand and the Underwriter on the other hand shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company, the Investment Adviser or the Administrator or by the Underwriter
and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or
omission.
(e) The
Company, the Investment Adviser, the Administrator and the Underwriter agree that it would not be just or equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation or by any other method of allocation that does not
take account of the equitable considerations referred to in Section 8(d). The amount paid or payable by an indemnified party
as a result of the losses, claims, damages and liabilities referred to in Section 8(d) shall be deemed to include, subject
to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the provisions of this Section 8, the Underwriter shall
not be required to contribute any amount in excess of the amount by which the total price at which the Notes underwritten by it
and distributed to the public were offered to the public exceeds the amount of any damages that the Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 8 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.
(f) The
indemnity and contribution provisions contained in this Section 8 and the representations, warranties and other statements
of the Company, the Investment Adviser and the Administrator contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of the Underwriter
Indemnified Party or by or on behalf of any Company Indemnified Party and (iii) acceptance of and payment for any of the Notes.
(g) No
party shall be entitled to indemnification under this Section 8 if such indemnification of such party would violate Section 17(i)
of the Investment Company Act.
9. Termination.
The Underwriter may terminate this Agreement by notice given by it to the Company, if after the execution and delivery of this
Agreement and prior to the Closing Date (i) trading generally shall have been suspended or materially limited on, or by, as
the case may be, any of the NYSE, the NYSE MKT, the NASDAQ Stock Market, the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the Company shall have been suspended on any exchange
or in any over-the-counter market, (iii) a material disruption in securities settlement, payment or clearance services in
the United States shall have occurred, (iv) any moratorium on commercial banking activities shall have been declared by Federal
or New York State authorities, (v) there shall have occurred any outbreak or escalation of hostilities, or any change in financial
markets or any calamity or crisis that, in the Underwriter’s judgment, is material and adverse and which, singly or together
with any other event specified in this clause (v), makes it, in the Underwriter’s judgment, impracticable or inadvisable
to proceed with the offer, sale or delivery of the Notes on the terms and in the manner contemplated in the Time of Sale Prospectus
or the Prospectus, or (vi) (x) a downgrading shall have occurred in the rating accorded the Notes by any “nationally recognized
statistical rating organization,” as that term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange
Act, and (y) such an organization shall have publicly announced that it has under surveillance or review, with possible negative
implications, its rating of the Notes.
10. Effectiveness.
This Agreement shall become effective upon the execution and delivery hereof by the parties hereto.
11. Entire
Agreement.
(a) This
Agreement supersedes all prior agreements and understandings (whether written or oral) between and among the Company, the Investment
Adviser, the Administrator and the Underwriter, or any of them, with respect to the subject matter hereof.
(b) Each
of the Company, the Investment Adviser and the Administrator acknowledges that in connection with the offering of the Notes: (i) the
Underwriter is acting solely as an underwriter in connection with the sale of the Notes and no fiduciary, advisory or agency relationship
between the Company, the Investment Adviser and the Administrator, on the one hand, and the Underwriter, on the other hand, has
been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not the Underwriter
has advised or is advising the Company, the Investment Adviser or the Administrator on other matters, (ii) the public offering
price of the Notes and the price to be paid by the Underwriter for the Notes set forth in this Agreement were established by the
Company, the Investment Adviser and the Administrator following discussions and arms-length negotiations with the Underwriter,
(iii) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions
contemplated by this Agreement, (iv) the Underwriter owes the Company, the Investment Adviser and the Administrator only those
duties and obligations set forth in this Agreement and prior written agreements (to the extent not superseded by this Agreement),
if any, (v) the Underwriter may have interests that differ from those of the Company, the Investment Adviser and the Administrator,
and (vi) it waives, to the fullest extent permitted by law, any claims it may have against the Underwriter for breach of fiduciary
duty or alleged breach of fiduciary duty and agrees that the Underwriter shall not have any liability (whether direct or indirect,
in contact, tort or otherwise) to it in respect of such a fiduciary duty claim or to any person asserting a fiduciary duty claim
on its behalf or in right of it or the Company, the Investment Adviser or the Administrator or any stockholders, employees or creditors
of the Company, the Investment Adviser or the Administrator.
12. Counterparts.
This Agreement may be signed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
13. Applicable
Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York applicable
to contracts made and to be performed within the State of New York, notwithstanding any otherwise applicable conflicts of law principles.
14. Headings.
The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
15. Notices.
All communications hereunder shall be in writing and effective only upon receipt and (i) if to the Underwriter, shall be sufficient
in all respects if delivered, mailed or sent to Incapital LLC, 200 South Wacker Drive, Suite 3700, Chicago, Illinois 60606, Attention:
General Counsel (facsimile no. (312) 379-3701), with a copy to Morrison & Foerster LLP, 250 West 55th Street, New York, New
York 10019, Attention: Anna T. Pinedo (facsimile no. (212) 468-7900) and (ii) if to the Company, the Investment Adviser or
the Administrator, shall be sufficient in all respects if delivered, mailed or sent to the Company, the Investment Adviser or the
Administrator, as applicable, at the offices of the Company at 20 Horseneck Lane, Greenwich, Connecticut 06830, Attention: General
Counsel (facsimile no. (203) 340-8543), with a copy to Dechert LLP, One International Place, 40th Floor, 100 Oliver
Street, Boston Massachusetts 02110, Attention: Thomas J. Friedmann (facsimile no. (202) 261-3333).
[Signature pages follow]
|
Very truly yours, |
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EAGLE POINT CREDIT COMPANY INC. |
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By: |
/s/ Thomas P. Majewski |
|
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Name: Thomas P. Majewski |
|
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Title: Chief Executive Officer |
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EAGLE POINT CREDIT MANAGEMENT LLC |
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By: |
/s/ Thomas P. Majewski |
|
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Name: Thomas P. Majewski |
|
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Title: Managing Partner |
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EAGLE POINT ADMINISTRATION LLC |
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By: |
Eagle Point Credit Management LLC,
its sole member |
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By: |
/s/ Thomas P. Majewski |
|
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Name: Thomas P. Majewski |
|
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Title: Managing Partner |
[Company Signature Page to Underwriting
Agreement]
Accepted as of the date hereof |
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INCAPITAL LLC |
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By: Incapital LLC |
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By: |
/s/ Christopher O’Connor |
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Name: Christopher O’Connor |
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Title: Managing Director |
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[Underwriter Signature Page to Underwriting
Agreement]
SCHEDULE I
PRICING INFORMATION
| 1. | Aggregate principal amount of Firm Notes sold: $25,000,000 |
| 2. | The public offering price for the Notes: 100% of the aggregate principal amount |
| 3. | The purchase price for the Firm Notes to be paid by the Underwriter: 97% of the aggregate principal amount |
| 4. | The interest rate on the Notes: 7.00% per annum |
| 5. | No call period: Closing Date through December 31, 2017 |
SCHEDULE II
OMITTING PROSPECTUSES
| 1. | 482ad filed pursuant to Rule 497(a) on July 22, 2015 |
| 2. | 482ad filed pursuant to Rule 497(a) on July 27, 2015 |
| 3. | 482ad filed pursuant to Rule 497(a) on August 13, 2015 |
| 4. | 482ad filed pursuant to Rule 497(a) on November 30, 2015 |
| 5. | 482ad filed pursuant to Rule 497(a) on December 1, 2015 at 3:19
P.M. |
| 6. | 482ad filed pursuant to Rule 497(a) on December 1, 2015 at 4:19
P.M. |
| 7. | 482ad filed pursuant to Rule 497(a) on December 1, 2015 at 5:10
P.M. |
EXHIBIT A
Form of Opinion of Dechert LLP
Exhibit (l)(2)
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December 4, 2015
Eagle Point Credit Company Inc.
20 Horseneck Lane
Greenwich, CT 06830
Re: Registration Statement on Form N-2
Ladies and Gentlemen:
We have acted as counsel to Eagle Point Credit Company Inc.,
a Delaware corporation (the “Company”), in connection with the preparation and filing of a Registration Statement
on Form N-2 (File Nos. 333-205540 and 811-22974) as originally filed with the U.S. Securities and Exchange Commission (the “Commission”)
on July 7, 2015 under the Securities Act of 1933, as amended (the “Securities Act”), and under the Investment
Company Act of 1940, as amended (the “Investment Company Act”), and as subsequently amended on July 22, 2015,
August 11, 2015, September 11, 2015, November 5, 2015, November 23, 2015 and on or about the date hereof (the “Registration
Statement”), relating to the proposed issuance by the Company of $25,000,000 aggregate principal amount of 7.00% notes
due 2020 (the “Notes”) to be sold to an underwriter pursuant to an underwriting agreement substantially in the
form filed as Exhibit (h)(3) to the Registration Statement (the “Underwriting Agreement”). This opinion
letter is being furnished to the Company in accordance with the requirements of Item 25 of Form N-2 under the Investment Company
Act, and no opinion is expressed herein as to any matter other than as to the legality of the Indenture (as defined below) and
the Notes.
The Notes have been issued pursuant to the indenture dated as
of December 4, 2015 (the “Base Indenture”), between the Company and American Stock Transfer & Trust Company,
LLC, trustee (the “Trustee”), as supplemented by the first supplemental indenture dated as of December 4, 2015
(together with Base Indenture, the “Indenture”), between the Company and the Trustee.
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Eagle Point Credit Company Inc. December 4, 2015 Page 2
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In rendering the opinions expressed below, we have examined
and relied on originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records
and other instruments and such agreements, certificates and receipts of public officials, certificates of officers or other representatives
of the Company and others, and such other documents as we have deemed necessary or appropriate as a basis for rendering this opinion,
including the following documents:
| (i) | the Registration Statement; |
| (ii) | the Underwriting Agreement; |
| (iv) | a specimen copy of the form of the Notes to be issued pursuant to the Indenture; |
| (v) | the Certificate of Incorporation of the Company; |
| (vi) | the Amended and Restated Bylaws of the Company; |
| (vii) | a certificate of good standing with respect to the Company issued by the Secretary of State of the State of Delaware as of
a recent date; and |
| (viii) | resolutions of the board of directors of the Company relating to, among other things, the authorization and issuance of the
Notes. |
As to the facts upon which this opinion is based, we have relied,
to the extent we deem proper, upon certificates of public officials and certificates and written statements of officers, directors,
employees and representatives of the Company.
In our examination, we have assumed the genuineness of all signatures,
the authenticity of all documents submitted to us as original documents and the conformity to original documents of all documents
submitted to us as copies. In addition, we have assumed (i) the legal capacity of natural persons and (ii) the legal power and
authority of all persons signing on behalf of the parties to all documents (other than the Company).
On the basis of the foregoing and subject to the assumptions
and qualifications set forth in this letter, we are of the opinion that:
| 1. | The Indenture has been duly authorized, executed and
delivered by the Company and constitutes the valid and legally binding obligation of the Company, enforceable against the Company
in accordance with its terms. |
| 2. | Assuming the Notes have been duly authenticated by the Trustee in accordance with the terms of the Indenture, the Notes constitute
valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms. |
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Eagle Point Credit Company Inc. December 4, 2015 Page 3
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The opinions set forth herein are subject to the following assumptions
and qualifications being true and correct at or before the issuance of the Notes:
| (i) | the Indenture and the Notes have been duly authorized, executed and delivered by each party thereto (other than the Company); and |
| (ii) | the terms of the Notes as established comply with the requirements of the Investment Company Act. |
The opinions set forth herein as to enforceability of obligations
of the Company are subject to: (i) bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium or similar laws
now or hereinafter in effect affecting the enforcement of creditors’ rights generally, and by general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at law) and the discretion of the court or other body
before which any proceeding may be brought; (ii) the unenforceability under certain circumstances under law or court decisions
of provisions providing for the indemnification of, or contribution to, a party with respect to a liability where such indemnification
or contribution is contrary to public policy and (iii) an implied covenant of good faith and fair dealing.
We express no opinion as to the validity, legally binding effect
or enforceability of any provision in any agreement or instrument that (i) requires or relates to payment of any interest at a
rate or in an amount which a court may determine in the circumstances under applicable law to be commercially unreasonable or a
penalty or forfeiture or (ii) relates to governing law and submission by the parties to the jurisdiction of one or more particular
courts.
The opinions expressed herein are limited to the federal laws
of the United States of America, the laws of the State of New York and the General Corporation Law of the State of Delaware. We
are members of the bar of the State of New York.
We assume no obligation to advise you of any changes in the
foregoing subsequent to the date of this opinion.
We hereby consent to the filing of this opinion as an exhibit
to the Registration Statement and to the reference to this firm under the caption “Legal Matters” in the prospectus
which forms a part of the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of
persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ Dechert LLP
Dechert LLP
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