As filed with the Securities and Exchange Commission on February 12, 2025
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
Antero Midstream Corporation
(Exact name of registrant as specified in its charter)
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Delaware
(State or other jurisdiction of
incorporation or organization)
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61-1748605
(I.R.S. Employer
Identification Number)
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1615 Wynkoop Street
Denver, Colorado 80202
(303) 357-7310
(Addresses, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Yvette K. Schultz
1615 Wynkoop Street
Denver, Colorado 80202
(303) 357-7310
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Scott D. Rubinsky
Vinson & Elkins L.L.P.
845 Texas Avenue, Suite 4700
Houston, Texas 77002
(713) 758-2222
Approximate date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: ☐
If any of the securities being registered on this form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: ☒
If this form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☒
If this form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
Large accelerated filer ☒Accelerated filer ☐ Non-accelerated filer ☐ Smaller reporting company ☐
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of Securities Act. ☐
EXPLANATORY NOTE
In connection with the closing of our simplification transaction in March 2019, Antero Midstream Corporation entered into a Registration Rights Agreement with certain holders of our common stock. Pursuant to the Registration Rights Agreement, we filed a shelf registration statement in 2022 to register, among other things, the resale of shares of our common stock held by such stockholders. The previously filed registration statement expires in March 2025, three years after its filing. This registration statement is being filed to satisfy our obligation under the Registration Rights Agreement to maintain an effective shelf registration statement for the holders of registration rights.
This registration statement consists of two prospectuses, covering the registration of:
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Shares of common stock, shares of preferred stock, debt securities, warrants and depositary shares of Antero Midstream Corporation; and
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Shares of common stock of Antero Midstream Corporation that may be sold in one or more secondary offerings by the selling stockholders.
PROSPECTUS
Antero Midstream Corporation
Common Stock
Preferred Stock
Debt Securities
Warrants
Depositary Shares
From time to time we may offer and sell the following securities:
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Shares of common stock;
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Shares of preferred stock;
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Debt securities;
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Warrants; and
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Depositary shares.
We refer to our common stock, preferred stock, debt securities, warrants and depositary shares, collectively, as the “securities.” We may offer and sell these securities from time to time in amounts, at prices and on terms to be determined by market conditions and other factors at the time of our offerings.
We may offer and sell these securities through one or more underwriters, dealers or agents, or directly to purchasers, on a continuous or delayed basis.
This prospectus describes only the general terms of the securities and the general manner in which we may offer the securities. The specific terms of any securities we offer will be included in a supplement to this prospectus. The prospectus supplement will describe the specific manner in which we will offer the securities and also may add, update or change information contained in this prospectus.
You should carefully read this prospectus, the documents incorporated by reference in this prospectus and any prospectus supplement before you invest. You should also read the documents we refer to in the “Where You Can Find More Information” section of this prospectus for the information about us and certain risks related to the purchase of our securities. This prospectus may not be used to consummate sales of our securities unless it is accompanied by a prospectus supplement.
Our common stock is listed on the New York Stock Exchange under the symbol “AM.”
Investing in our securities involves risks. Please read “Risk Factors” beginning on page 2 of this prospectus and in the applicable prospectus supplement and in the documents incorporated herein and therein before you make any investment in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 12, 2025.
TABLE OF CONTENTS
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You should rely only on the information contained in this prospectus, any prospectus supplement and the documents we have incorporated by reference into this prospectus. We have not authorized any dealer, salesperson or other person to provide you with additional or different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement are not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate and are not an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make an offer or solicitation in that jurisdiction. You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of this prospectus, or that the information contained in any document incorporated by reference is accurate as of any date other than the date of such document, regardless of the time of delivery of this prospectus or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since that date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we have filed with the U.S. Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, we may, from time to time, offer and sell any combination of the securities described in this prospectus in one or more offerings. This prospectus generally describes Antero Midstream Corporation and the securities that we may offer under this prospectus.
Each time we sell securities under this prospectus, we will provide a prospectus supplement that will contain specific information about the terms of that offering and the securities being offered. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. We may also add or update in the prospectus supplement (and in any related free writing prospectus that we may authorize to be provided to you) any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. Please read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Where You Can Find More Information,” carefully before buying any of the securities being offered.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or are incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act of 1933, as amended (the “Securities Act”), that registers the offer and sale of the securities covered by this prospectus. The registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from this prospectus.
In addition, we file annual, quarterly and current reports and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov. You may also access the information we file electronically with the SEC through our website at www.anteromidstream.com. We have not incorporated by reference into this prospectus the information included on our website, and you should not consider it to be a part of this prospectus.
We “incorporate by reference” information into this prospectus, which means that we disclose important information to you by referring you to documents filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update information previously filed with the SEC, and may update or replace information in this prospectus and information previously filed with the SEC. You should not assume that the information in this prospectus is current as of any date other than the date on the cover page of this prospectus. You should not assume that the information contained in the documents incorporated by reference in this prospectus is accurate as of any date other than the respective dates of such documents.
We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (excluding any information furnished and not filed with the SEC), after the date on which the registration statement was initially filed with the SEC until all offerings under the registration statement of which this prospectus forms a part are completed or terminated:
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the description of our common stock contained in our Registration Statement on Form 8-A/A filed on March 12, 2019, including any subsequent amendments or reports that we may file in the future for the purpose of updating such description, including Exhibit 4.9 to the 2024 Form 10-K.
These reports contain important information about us, our financial condition and our results of operations.
You may obtain copies of any of the documents incorporated by reference in this prospectus from the SEC through the SEC’s website at the address provided above. You also may request a copy of any document incorporated by reference in this prospectus (including exhibits to those documents specifically incorporated by reference in this prospectus), at no cost, by contacting us at:
Antero Midstream Corporation
1615 Wynkoop Street
Attention: Investor Relations
Denver, Colorado 80202
Telephone: (303) 357-7310
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and incorporated by reference into this prospectus may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical fact, included in this prospectus and incorporated by reference into this prospectus, regarding our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are forward-looking statements. Words such as “may,” “assume,” “forecast,” “position,” “predict,” “strategy,” “expect,” “intend,” “plan,” “estimate,” “anticipate,” “believe,” “project,” “budget,” “potential,” or “continue,” and similar expressions are used to identify forward-looking statements, although not all forward-looking statements contain such identifying words. When considering these forward-looking statements, investors should keep in mind the risk factors and other cautionary statements in this prospectus. These forward-looking statements are based on management’s current beliefs, based on currently available information, as to the outcome and timing of future events. Factors that could cause our actual results to differ materially from the results contemplated by such forward-looking statements include:
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Antero Resources Corporation’s (“Antero Resources”) expected production and development plan;
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our ability to execute our business strategy;
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impacts to producer customers of insufficient storage capacity;
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our ability to obtain debt or equity financing on satisfactory terms to fund additional acquisitions, expansion projects, working capital requirements and the repayment or refinancing of indebtedness;
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natural gas, natural gas liquids (“NGLs”) and oil prices;
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our ability to realize the anticipated benefits of our investments in unconsolidated affiliates;
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our ability to execute our return of capital program;
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our ability to complete the construction of or purchase new gathering and compression, processing, water handling or other assets on schedule, at the budgeted cost or at all and the ability of such assets to operate as designed or at expected levels;
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costs of conducting our operations;
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impacts of geopolitical events, including the conflicts in Ukraine and in the Middle East, and world health events;
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actions taken by third-party producers, operators, processors and transporters;
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competition;
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government regulations and changes in laws;
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operating hazards, natural disasters, weather-related delays, casualty losses and other matters beyond our control;
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expectations regarding the amount and timing of litigation awards;
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pending legal or environmental matters;
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uncertainty regarding our future operating results;
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credit markets;
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our ability to achieve our greenhouse gas reduction targets and the costs associated therewith;
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general economic conditions; and
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our other plans, objectives, expectations and intentions contained in this prospectus that are not historical.
We caution investors that these forward-looking statements are subject to all of the risks and uncertainties incidental to our business, most of which are difficult to predict and many of which are beyond our control. These risks include, but are not limited to, commodity price volatility, inflation, supply
chain or other disruptions, environmental risks, Antero Resources’ drilling and completion and other operating risks, regulatory changes or changes in law, the uncertainty inherent in projecting Antero Resources’ future rates of production, cash flows and access to capital, the timing of development expenditures, impacts of world health events, cybersecurity risks, the state of markets for, and availability of, verified quality carbon offsets and the other risks described under the heading “Risk Factors” in this prospectus and in our Annual Report on Form 10-K for the year ended December 31, 2024, which is incorporated by reference herein, and our other reports filed with the SEC.
Should one or more of the risks or uncertainties described in this prospectus occur, or should underlying assumptions prove incorrect, our actual results and plans could differ materially from those expressed in any forward-looking statements.
All forward-looking statements, expressed or implied, included in this prospectus or incorporated herein by reference are expressly qualified in their entirety by this cautionary statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements that we or persons acting on our behalf may issue.
Except as otherwise required by applicable law, we disclaim any duty to update any forward-looking statements to reflect events or circumstances after the date of this prospectus.
ABOUT ANTERO MIDSTREAM CORPORATION
We are a growth-oriented midstream energy company formed to own, operate and develop midstream energy assets that primarily service Antero Resources’ production and completion activity in the Appalachian Basin located in West Virginia and Ohio. Our assets consist of gathering systems and compression facilities, water handling and blending facilities and interests in processing and fractionation plants. We conduct our operations and own our operating assets and ownership interests in Stonewall Gas Gathering LLC and a joint venture with MarkWest Energy Partners, L.P. through Antero Midstream Partners and its subsidiaries, all of which are wholly-owned.
Our principal executive offices are at 1615 Wynkoop Street, Denver, Colorado 80202. Our telephone number is (303) 357-7310. Our website is located at www.anteromidstream.com.
RISK FACTORS
An investment in our securities involves a significant degree of risk. Before you invest in our securities, you should carefully consider those risk factors included in our most recently filed Annual Report on Form 10-K, and any subsequently filed Quarterly Reports on Form 10-Q and Current Reports on Form 8-K we file after the date of this prospectus, each of which is incorporated herein by reference, and those risk factors that may be included in any applicable prospectus supplement, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference, in evaluating an investment in our securities. If any of these risks were actually to occur, our business, financial condition or results of operations could be materially adversely affected. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations and financial condition. Please read “Cautionary Statement Regarding Forward-Looking Statements.”
USE OF PROCEEDS
Unless we specify otherwise in any prospectus supplement, we expect to use the net proceeds we receive from the sale of the securities covered by this prospectus for general corporate purposes, which may include, among other things:
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repayment of indebtedness; and
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funding working capital, capital expenditures and potential acquisitions.
The actual application of the net proceeds from the sale of any particular offering of securities using this prospectus will be described in the applicable prospectus supplement relating to such offering. The precise amount and timing of the application of these proceeds will depend upon our funding requirements and the availability and cost of other funds.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our authorized capital stock consisted of 2,000,000,000 shares of common stock, $0.01 par value per share, of which 478,606,442 shares were issued and outstanding, and 100,000,000 shares of preferred stock, $0.01 par value per share, including 12,000 shares designated as “5.5% Series A Non-Voting Perpetual Preferred Stock” (the “Series A Preferred Stock”), of which 10,000 shares were issued and outstanding.
The following summary of our capital stock, certificate of incorporation, certificate of designations for the Series A Preferred Stock (the “Certificate of Designations”) and our bylaws does not purport to be complete and is qualified in its entirety by reference to the provisions of applicable law and to our certificate of incorporation and bylaws.
Common Stock
Except as provided by law or in a preferred stock designation (including the Certificate of Designations), holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, have the right to vote for the election of directors and do not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares or series of preferred stock (including the Series A Preferred Stock), holders of common stock are entitled to receive ratably such dividends (payable in cash, stock or otherwise), if any, as may be declared from time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of common stock are fully paid and non-assessable and the shares of common stock that will be issued under this prospectus will be fully paid and non-assessable.
The holders of common stock have no preferences or rights of conversion, exchange, pre-emption or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock. In the event of any liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of our debts and obligations and after liquidation payments to holders of outstanding shares of preferred stock, if any.
Preferred Stock
Our certificate of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more series of preferred stock, par value $0.01 per share, covering up to an aggregate of 100,000,000 shares of preferred stock. Each series of preferred stock will cover the number of shares and will have the powers, preferences, rights, qualifications, limitations and restrictions determined by our board of directors, which may include, among others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation (including the Certificate of Designations), the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of stockholders.
5.5% Series A Non-Voting Perpetual Preferred Stock
Dividends. Subject to the prior and superior rights of any senior securities with respect to dividends, holders of shares of Series A Preferred Stock are entitled to receive quarterly dividends on each share of Series A Preferred Stock, when, as and if declared by our board of directors out of funds legally available therefor, payable in cash on the 45th day following the end of each fiscal quarter of ours in each year or such other dates as our board of directors will approve, at a rate of 5.5% per annum on (i) the liquidation preference per share of Series A Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior dividend period on such share of Series A Preferred Stock, if any. Such dividends accrue and are cumulative from the original issue date, compound on each quarterly dividend payment date and are payable quarterly in arrears on each quarterly dividend payment date.
Conversion at the Option of the Holder. On or after March 12, 2029, each share of Series A Preferred Stock will be convertible, at any time and from time to time from and after such date, at the option of the
holder of the Series A Preferred Stock, into a number of shares of common stock equal to the conversion ratio in effect on the applicable conversion date, subject to certain limitations; provided that no shares of Series A Preferred Stock may be converted into shares of common stock at any time that any shares of the Series A Preferred Stock are held by The Antero Foundation, which held all of the Series A Preferred Shares outstanding as of the date of this prospectus; and provided further that, notwithstanding anything in the Certificate of Designation to the contrary, in no event will the aggregate number of shares of common stock issued pursuant to all conversions exceed 19.9% of the number of shares of common stock issued and outstanding on the date of issuance of the Series A Preferred Stock. The conversion ratio for each share of Series A Preferred Stock will be equal to (i) $1,000 per share, plus accrued but unpaid dividends as of the conversion date, divided by (ii) the volume weighted average price per share of common stock during the 10 trading days preceding the conversion date.
Redemption at the Option of the Company. Notwithstanding anything in the Certificate of Designation to the contrary, if we undergo a “Change of Control” as defined in the Certificate of Designation, or at any time on and after March 12, 2029, we, at our option, may redeem the Series A Preferred Stock in whole or in part, at a price equal to $1,000 per share, plus any accrued and unpaid dividends, payable in cash; provided that if any shares of the Series A Preferred Stock are held by The Antero Foundation at the time of such redemption, the price for redemption of each share of Series A Preferred Stock will be the greater of (i) $1,000 per share, plus any accrued but unpaid dividends and (ii) the fair market value of the Series A Preferred Stock as determined by a third party appraiser selected in good faith by us, subject to The Antero Foundation’s approval, which approval will not be unreasonably withheld or delayed.
Transfer. A holder of shares of our Series A Preferred Stock may transfer such holder’s shares of Series A Preferred Stock to (i) us or any subsidiary of ours or (ii) otherwise in a transaction pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with applicable state securities laws, subject to compliance with the other requirements of the Certificate of Designation. The Certificate of Designation provides that in no event will a transfer of the Series A Preferred Stock be made if such transfer, or such transfer together with any other transfers, would result in us being required to register the Series A Preferred Stock under Section 12 of Exchange Act, or would otherwise trigger or subject us, or any subsidiary or other affiliate of ours, to the registration requirements of the Exchange Act with respect to the Series A Preferred Stock.
Liquidation Preference. In the event we voluntarily or involuntarily liquidate, dissolve or wind up, subject to the prior and superior rights of the holders of any senior securities, holders of shares of Series A Preferred Stock as of the record date set in connection therewith will be entitled to receive liquidating distributions in the amount of $1,000 per share of Series A Preferred Stock, in each case, plus an amount equal to any declared but unpaid dividends up to and including the date of such liquidation, out of assets legally available for distribution to our stockholders, before any distribution of assets is made to the holders of any junior securities, subject to certain limitations.
No Voting Rights. Holders of shares of Series A Preferred Stock do not have any voting rights, including the right to elect any directors, and their consent is not be required for taking any corporation action, except for any voting rights (including with respect to corporate actions) required by the General Corporation Law of the State of Delaware (“DGCL”) or our certificate of incorporation.
No Preemptive Rights. No shares of Series A Preferred Stock have any rights of preemption whatsoever as to any of our securities.
Rank. Our Series A Preferred Stock, with respect to dividend rights and rights upon the liquidation, winding-up or dissolution of us, ranks: (i) on parity with each class or series of equity securities of ours the terms of which will expressly provide that such class or series will rank on parity with the Series A Preferred Stock as to dividend rights or rights upon the liquidation, winding-up or dissolution of us, (ii) senior to the common stock and each other class or series of capital stock outstanding or established, the terms of which do not expressly provide that it ranks senior to or on parity with the Series A Preferred Stock as to dividend rights or as to rights upon the liquidation, winding-up or dissolution of us, and (iii) junior to each other class or series of capital stock outstanding or established, the terms of which expressly provide that
it ranks senior to the Series A Preferred Stock as to dividend rights or as to rights upon the liquidation, winding-up or dissolution of us.
Other Rights. The shares of Series A Preferred Stock do not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights other than as set forth in our certificate of incorporation (including the Certificate of Designation for the Series A Preferred Stock) or as provided by applicable law.
Our Certificate of Incorporation and Our Bylaws
Among other things, our certificate of incorporation and bylaws:
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provide advance notice procedures with regard to stockholder nominations of candidates for election as directors or other stockholder proposals to be brought before meetings of our stockholders, which may preclude stockholders from bringing certain matters before our stockholders at an annual or special meeting;
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provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken;
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provide that, generally, to be timely, notice must be delivered to our corporate secretary at our principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (unless the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, in which case such notice must be delivered no earlier than the close of business on the 120th day prior to such annual meeting or later than the close of business on the later of the 90th day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day after the first public disclosure of the date of such meeting by us);
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provide our board of directors the ability to authorize issuance of preferred stock in one or more series, which makes it possible for our board of directors to issue, without stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us and which may have the effect of deterring hostile takeovers or delaying changes in control or management of us;
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provide that the authorized number of directors may be changed only by resolution of our board of directors;
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provide that, subject to the rights of holders of any series of preferred stock to elect directors or fill vacancies in respect of such directors as specified in the related preferred stock designation and the terms of the Stockholders’ Agreement, dated as of October 9, 2018, by and among us and certain of our stockholders, including Antero Resources (as it may be amended from time to time, the “Stockholders’ Agreement”), all vacancies, including newly created directorships be filled by the affirmative vote of holders of a majority of directors then in office, even if less than a quorum, or by the sole remaining director, and will not be filled by our stockholders;
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provide that, subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, if any, and the terms of the Stockholders’ Agreement, any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such stockholders;
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provide that, subject to the rights of the holders of shares of any series of preferred stock, if any, to remove directors elected by such series of preferred stock pursuant to our certificate of incorporation (including any preferred stock designation thereunder) and the terms of the Stockholders’ Agreement, directors may be removed from office at any time, only for cause and by the holders of a majority of the voting power of all outstanding voting shares entitled to vote generally in the election of directors;
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provide that special meetings of our stockholders may only be called by the Chief Executive Officer, the Chairman of our board of directors or our board of directors pursuant to a resolution adopted by a majority of the total number of directors that we would have if there were no vacancies;
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provide that (i) Yorktown Partners LLC (“Yorktown”) and its affiliates are permitted to participate (directly or indirectly) in venture capital and other direct investments in corporations, joint ventures, limited liability companies and other entities conducting business of any kind, nature or description, (ii) Yorktown and its affiliates are permitted to have interests in, participate with, aid and maintain seats on the boards of directors or similar governing bodies of any such investments, in each case that may, are or will be competitive with the business of us and our subsidiaries or in the same or similar lines of business as us and our subsidiaries, or that could be suitable for us or our subsidiaries and (iii) we have, subject to limited exceptions, renounced, to the fullest extent permitted by law, any interest or expectancy in, or in being offered an opportunity to participate in, such corporate opportunities;
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provide that the provisions of our certificate of incorporation can only be amended or repealed by the affirmative vote of the holders of at least 662∕3% in voting power of the outstanding shares of the common stock entitled to vote thereon, voting together as a single class; provided, however, that so long as the Stockholders’ Agreement remains in effect, no provision of our certificate of incorporation may be amended, altered or repealed in any manner that would be contrary to or inconsistent with the terms of the Stockholders’ Agreement, and no amendment to the Stockholders’ Agreement (regardless of whether such amendment modifies any provision of the Stockholders’ Agreement to which our certificate of incorporation is subject) will be deemed an amendment of our certificate of incorporation; and
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provide that our bylaws can be altered or repealed by (a) our board of directors or (b) our stockholders upon the affirmative vote of holders of at least 662∕3% of the voting power of common stock outstanding and entitled to vote thereon, voting together as a single class. However, so long as the Stockholders’ Agreement remains in effect, our board of directors and our stockholders may not approve any amendment, alteration or repeal of any provision of our bylaws, or the adoption of any new bylaw, that (a) would be contrary to or inconsistent with the terms of the Stockholders’ Agreement or (b) amends, alters or repeals certain portions of our certificate of incorporation; provided, however, that so long as the Stockholders’ Agreement remains in effect, the parties to the Stockholders’ Agreement may amend any provision of the Stockholders’ Agreement, and no amendment to the Stockholders’ Agreement (regardless of whether such amendment modifies any provision of the Stockholders’ Agreement to which the bylaws are subject) will be deemed an amendment of the bylaws for purposes of the amendment provisions of our bylaws.
Delaware Anti-Takeover Law
Section 203 of the DGCL provides that, subject to exceptions specified therein, a Delaware corporation may not engage in any “business combination,” including, among other things, certain mergers or consolidations with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless:
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prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
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upon consummation of the transaction that resulted in the stockholder becoming an “interested stockholder,” the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding specified shares); or
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on or subsequent to such time, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of holders of at least 662∕3% of the outstanding voting stock not owned by the interested stockholder.
Except as otherwise specified in Section 203, an “interested stockholder” is defined to include:
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any person that is the owner of 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the date of determination; and
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the affiliates and associates of any such person.
Under some circumstances, Section 203 makes it more difficult for a person who is an interested stockholder to effect various business combinations for a three-year period.
Section 203 of the DGCL permits a Delaware corporation to elect not to be governed by the provisions of Section 203. Pursuant to our certificate of incorporation, we have expressly elected not to be governed by the provisions of Section 203 of the DGCL.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock and Series A Preferred Stock is Equiniti Trust Company, LLC.
Listing
Our common stock is listed on the NYSE under the symbol “AM.” The Series A Preferred Stock is not listed on any securities exchange.
DESCRIPTION OF DEBT SECURITIES
General
We may issue debt securities in one or more series. When used in this “Description of Debt Securities” section, unless we state otherwise or the context clearly indicates otherwise, references to the “Company,” “we,” “us,” and “our” refer to Antero Midstream Corporation and not any of its subsidiaries. We may issue senior or subordinated debt securities. Neither the senior debt securities nor the subordinated debt securities will be secured by any of our property or assets. Thus, by owning a debt security, you are one of our unsecured creditors.
The senior debt securities will constitute part of our senior debt, will be issued under a senior debt indenture described below and will rank equally with all of our other unsecured and unsubordinated debt. The subordinated debt securities will constitute part of our subordinated debt, will be issued under a subordinated debt indenture described below and will be subordinate in right of payment to all of our “senior debt,” as defined in the indenture with respect to such subordinated debt securities. The prospectus supplement for any series of subordinated debt securities or the information incorporated in this prospectus by reference will indicate the approximate amount of senior debt outstanding as of the end of the then most recent fiscal quarter. Neither indenture will limit our ability to incur additional senior debt or other indebtedness.
When we refer to “debt securities” in this prospectus, we mean both the senior debt securities and the subordinated debt securities. When we refer to a “debt security” in this prospectus, we mean either a senior debt security or a subordinated debt security.
The debt indentures and their associated documents, including your debt security, will contain the full legal text of the matters described in this section and your prospectus supplement. We have filed forms of the indentures with the SEC as exhibits to our registration statement, of which this prospectus is a part. See “Where You Can Find More Information” in this prospectus for information on how to obtain copies of them.
This section and your prospectus supplement summarize material terms of the indentures and your debt security. They do not, however, describe every aspect of the indentures and your debt security. For example, in this section and your prospectus supplement, we use terms that have been given special meaning in the indentures, but we do not describe the meaning of all the terms that may be important to you. Your prospectus supplement will have a more detailed description of the specific terms of your debt security.
Indentures
The senior debt securities and subordinated debt securities will each be governed by a document called an indenture. Each indenture is a contract between us and Computershare Trust Company, N.A., as trustee. The indentures are substantially identical, except for certain provisions including those relating to subordination, which are included only in the indenture related to subordinated debt securities.
The trustee under each indenture has two main roles:
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First, the trustee can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, which we describe later under “— Default, Remedies and Waiver of Default.”
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Second, the trustee performs administrative duties for us, such as sending you interest payments and notices.
When we refer to the “indenture” or the “trustee” with respect to any debt securities, we mean the indenture under which those debt securities are issued and the trustee under that indenture.
Series of Debt Securities
We may issue as many distinct debt securities or series of debt securities under either indenture as we wish. This section summarizes terms of the securities that apply generally to all debt securities and series of
debt securities. The provisions of each indenture allow us not only to issue debt securities with terms different from those of debt securities previously issued under that indenture, but also to “reopen” a previously issued series of debt securities and issue additional debt securities of that series. We will describe most of the financial and other specific terms of your debt security, whether it is a series of the senior debt securities or the subordinated debt securities, in your prospectus supplement. Those terms may vary from the terms described here.
As you read this section, please remember that the specific terms of your debt security as described in your prospectus supplement will supplement and, if applicable, modify or replace the general terms described in this section. If there are any differences between your prospectus supplement and this prospectus with respect to your debt security, your prospectus supplement will control. Thus, the statements we make in this section may not apply to your debt security.
When we refer to a “series of debt securities,” we mean a series of debt securities issued under the applicable indenture. When we refer to “your debt security,” we mean the series of debt securities you purchase. When we refer to “your prospectus supplement,” we mean the prospectus supplement describing the specific terms of your debt security. The terms used in your prospectus supplement will have the meanings described in this prospectus, unless otherwise specified.
Amounts of Issuances
Neither indenture will limit the aggregate amount of debt securities that we may issue or the number of series or the aggregate amount of any particular series. We may issue debt securities and other securities at any time without your consent and without notifying you. The indentures and the debt securities will not limit our ability to incur other indebtedness or to issue other securities other than as specified in your debt security, as applicable. Also, unless otherwise specified below or in your prospectus supplement, we are not subject to financial or similar restrictions by the terms of the debt securities.
Principal Amount, Stated Maturity and Maturity
Unless otherwise stated, the principal amount of a debt security means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount of a debt security is its face amount. The term “stated maturity” with respect to any debt security means the day on which the principal amount of your debt security is scheduled to become due. The principal may become due sooner, by reason of redemption, acceleration after a default or otherwise in accordance with the terms of the debt security. The day on which the principal actually becomes due, whether at the stated maturity or earlier, is called the “maturity” of the principal. We also use the terms “stated maturity” and “maturity” to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of interest is scheduled to become due as the “stated maturity” of that installment. When we refer to the “stated maturity” or the “maturity” of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the case may be, of the principal.
Specific Terms of Debt Securities
Your prospectus supplement will describe the specific terms of your debt security, which will include some or all of the following:
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the title of the series of your debt security and whether it is a senior debt security or a subordinated debt security;
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any limit on the total principal amount of the debt securities of the same series;
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the stated maturity;
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the currency or currencies for payment of principal and interest, if not U.S. dollars;
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the price at which we originally issue your debt security, expressed as a percentage of the principal amount, and the original issue date;
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whether your debt security is a fixed-rate debt security, a floating rate debt security or an indexed debt security;
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if your debt security is a fixed-rate debt security, the yearly rate at which your debt security will bear interest, if any, and the interest payment dates;
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if your debt security is a floating-rate debt security, the interest rate basis; any applicable index currency or index maturity, spread or spread multiplier or initial base rate, maximum rate or minimum rate; the interest reset, determination, calculation and payment dates; the day count convention used to calculate interest payments for any period; the business day convention; and the calculation agent;
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if your debt security is an indexed debt security, the principal amount, if any, we will pay you at maturity, interest payment dates, the amount of interest, if any, we will pay you on an interest payment date or the formula we will use to calculate these amounts, if any, and the terms on which your debt security will be exchangeable for or payable in cash, securities or other property;
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if your debt security may be converted into or exercised or exchanged for common or preferred stock or other securities of the Company or debt or equity securities of one or more third parties, the terms on which conversion, exercise or exchange may occur, including whether conversion, exercise or exchange is mandatory, at the option of the holder or at our option, the period during which conversion, exercise or exchange may occur, the initial conversion, exercise or exchange price or rate and the circumstances or manner in which the amount of common or preferred stock or other securities issuable upon conversion, exercise or exchange may be adjusted;
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if your debt security is also an original issue discount debt security, the yield to maturity;
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if applicable, the circumstances under which your debt security may be redeemed at our option or repaid at the holder’s option before the stated maturity, including any redemption commencement date, repayment date(s), redemption price(s) and redemption period(s);
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the authorized denominations, if other than $2,000 and multiples of $1,000;
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the depositary for your debt security, if other than The Depository Trust Company (“DTC”), and any circumstances under which the holder may request securities in non-global form, if we choose not to issue your debt security in book-entry form only;
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if applicable, the circumstances under which we will pay additional amounts on any debt securities held by a person who is not a United States person for tax purposes and under which we can redeem the debt securities if we have to pay additional amounts;
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the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for your debt security, as applicable; and
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any other terms of your debt security, which could be different from those described in this prospectus.
Governing Law
The indentures and the debt securities will be governed by New York law.
Form of Debt Securities
We will issue each debt security only in registered form, without coupons, unless we specify otherwise in the applicable prospectus supplement. In addition, we will issue each debt security in global — i.e., book-entry — form only, unless we specify otherwise in the applicable prospectus supplement. Debt securities in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of all the debt securities represented by the global security. Those who own beneficial interests in a global debt security will do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. References to “holders” in this section mean those who own debt securities registered in their own names, on the books that we or the trustee maintain for this purpose, and not those who own beneficial interests in debt securities registered in street name or in debt securities issued in book-entry form through one or more depositaries.
Unless otherwise indicated in the prospectus supplement, the following is a summary of the depositary arrangements applicable to debt securities issued in global form and for which DTC acts as depositary.
Each global debt security will be deposited with, or on behalf of, DTC, as depositary, or its nominee, and registered in the name of a nominee of DTC. Except under the limited circumstances described below, global debt securities are not exchangeable for definitive certificated debt securities.
Ownership of beneficial interests in a global debt security is limited to institutions that have accounts with DTC or its nominee, or persons that may hold interests through those participants. In addition, ownership of beneficial interests by participants in a global debt security will be evidenced only by, and the transfer of that ownership interest will be effected only through, records maintained by DTC or its nominee for a global debt security. Ownership of beneficial interests in a global debt security by persons that hold those interests through participants will be evidenced only by, and the transfer of that ownership interest within that participant will be effected only through, records maintained by that participant. DTC has no knowledge of the actual beneficial owners of the debt securities. Beneficial owners will not receive written confirmation from DTC of their purchase, but beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the participants through which the beneficial owners entered the transaction. The laws of some jurisdictions require that certain purchasers of securities take physical delivery of securities they purchase in definitive form. These laws may impair your ability to transfer beneficial interests in a global debt security.
We will make payment of principal of, and interest on, debt securities represented by a global debt security registered in the name of or held by DTC or its nominee to DTC or its nominee, as the case may be, as the registered owner and holder of the global debt security representing those debt securities. DTC has advised us that upon receipt of any payment of principal of, or interest on, a global debt security, DTC immediately will credit accounts of participants on its book-entry registration and transfer system with payments in amounts proportionate to their respective interests in the principal amount of that global debt security, as shown in the records of DTC. Payments by participants to owners of beneficial interests in a global debt security held through those participants will be governed by standing instructions and customary practices, as is now the case with securities held for the accounts of customers in bearer form or registered in “street name,” and will be the sole responsibility of those participants, subject to any statutory or regulatory requirements that may be in effect from time to time.
Neither we, any trustee nor any of our respective agents will be responsible for any aspect of the records of DTC, any nominee or any participant relating to, or payments made on account of, beneficial interests in a permanent global debt security or for maintaining, supervising or reviewing any of the records of DTC, any nominee or any participant relating to such beneficial interests.
A global debt security is exchangeable for definitive certificated debt securities registered in the name of, and a transfer of a global debt security may be registered to, any person other than DTC or its nominee, only if:
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DTC notifies us that it is unwilling, unable or no longer qualified to continue as depositary for that global security or has ceased to be a registered clearing agency and we do not appoint another institution to act as depositary within 60 days; or
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we notify the trustee that we wish to terminate that global security.
Any global debt security that is exchangeable pursuant to the preceding paragraph will be exchangeable in whole for definitive certificated debt securities in registered form, of like tenor and of an equal aggregate principal amount as the global debt security, in denominations specified in the applicable prospectus supplement, if other than $2,000 and multiples of $1,000. The definitive debt securities will be registered by the registrar in the name or names instructed by DTC. We expect that these instructions may be based upon directions received by DTC from its participants with respect to ownership of beneficial interests in the global debt security.
Except as provided above or in your prospectus supplement, owners of the beneficial interests in a global debt security will not be entitled to receive physical delivery of debt securities in definitive certificated form and will not be considered the holders of debt securities for any purpose under the indentures. Except as provided above, no global debt security shall be exchangeable except for another global debt security of like denomination and tenor to be registered in the name of DTC or its nominee. Accordingly, each person owning a beneficial interest in a global debt security must rely on the procedures of DTC and, if
that person is not a participant, on the procedures of the participant through which that person owns its interest, to exercise any rights of a holder under the global debt security or the indentures.
We understand that, under existing industry practices, in the event that we request any action of holders, or an owner of a beneficial interest in a global debt security desires to give or take any action that a holder is entitled to give or take under the debt securities or the indentures, DTC would authorize the participants holding the relevant beneficial interests to give or take that action. Additionally, those participants would authorize beneficial owners owning through those participants to give or take that action or would otherwise act upon the instructions of beneficial owners owning through them.
DTC has advised us that it is a limited-purpose trust company organized under the laws of the State of New York, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code, and a “clearing agency” registered under the Exchange Act. DTC was created to hold securities of its participants and to facilitate the clearance and settlement of transactions among its participants in securities through electronic book-entry changes in accounts of the participants. By doing so, DTC eliminates the need for physical movement of securities certificates.
DTC’s participants include securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (DTCC); DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies; and DTCC is owned by the users of its regulated subsidiaries. Access to DTC’s book-entry system is also available to others, such as banks, brokers, dealers, and trust companies that clear through or maintain a custodial relationship with a participant, either directly or indirectly. The rules applicable to DTC and its participants are on file with the SEC.
Investors may hold interests in the debt securities outside the U.S. through the Euroclear System (“Euroclear”) or Clearstream Banking (“Clearstream”) if they are participants in those systems, or indirectly through organizations which are participants in those systems. Euroclear and Clearstream will hold interests on behalf of their participants through customers’ securities accounts in Euroclear’s and Clearstream’s names on the books of their respective depositaries, which in turn will hold such interests in customers’ securities accounts in the depositaries’ names on the books of DTC. All securities in Euroclear or Clearstream are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts.
The following is based on information furnished by Euroclear or Clearstream, as the case may be. Euroclear has advised us that:
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It was created in 1968 to hold securities for participants of Euroclear and to clear and settle transactions between Euroclear participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of certificates and any risk from lack of simultaneous transfers of securities and cash;
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Euroclear includes various other services, including securities lending and borrowing and interfaces with domestic markets in several countries;
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Euroclear is operated by Euroclear Bank SA/NV, as operator of the Euroclear System (the “Euroclear Operator”), under contract with Euroclear Clearance Systems S.C., a Belgian cooperative corporation (the “Cooperative”);
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The Euroclear Operator conducts all operations, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator, not the Cooperative. The Cooperative establishes policy for Euroclear on behalf of Euroclear participants. Euroclear participants include banks (including central banks), securities brokers and dealers and other professional financial intermediaries and may include underwriters of debt securities offered by this prospectus;
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Indirect access to Euroclear is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly;
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Securities clearance accounts and cash accounts with Euroclear SA/NV are governed by the Terms and Conditions Governing Use of Euroclear, the related Operating Procedures of Euroclear, and applicable Belgian law (collectively, the “Terms and Conditions”);
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The Terms and Conditions govern transfers of securities and cash within Euroclear, withdrawals of securities and cash within Euroclear, withdrawals of securities and cash from Euroclear, and receipts of payments with respect to securities in Euroclear. All securities in Euroclear are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. Euroclear SA/NV acts under the Terms and Conditions only on behalf of Euroclear participants and has no record of or relationship with persons holding through Euroclear participants; and
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Distributions with respect to debt securities held beneficially through Euroclear will be credited to the cash accounts of Euroclear participants in accordance with the Terms and Conditions, to the extent received by the U.S. depositary for Euroclear.
Clearstream has advised us that:
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It is incorporated under the laws of Luxembourg as a professional depositary and holds securities for its participating organizations and facilitates the clearance and settlement of securities transactions between Clearstream participants through electronic book-entry changes in accounts of Clearstream participants, thereby eliminating the need for physical movement of certificates;
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Clearstream provides to Clearstream participants, among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream interfaces with domestic markets in several countries;
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As a professional depositary, Clearstream is subject to regulation by the Luxembourg Monetary Institute;
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Clearstream participants are recognized financial institutions around the world, including underwriters, securities brokers and dealers, banks, trust companies, clearing corporations and certain other organizations and may include underwriters of debt securities offered by this prospectus;
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Indirect access to Clearstream is also available to others, such as banks, brokers, dealers and trust companies, that clear through or maintain a custodial relationship with a Clearstream participant either directly or indirectly; and
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Distributions with respect to the debt securities held beneficially through Clearstream will be credited to cash accounts of Clearstream participants in accordance with its rules and procedures, to the extent received by the U.S. depositary for Clearstream.
We have provided the descriptions herein of the operations and procedures of DTC, Euroclear and Clearstream solely as a matter of convenience. These operations and procedures are solely within the control of DTC, Euroclear and Clearstream and are subject to change by them from time to time. We believe that the sources from which the information in this section and elsewhere in this prospectus concerning DTC, Euroclear, Euroclear SA/NV, Euroclear Clearance Systems S.C., Euroclear’s system, Clearstream and Clearstream’s system has been obtained are reliable, but neither we, any underwriters nor the trustee takes any responsibility for the accuracy of the information.
Initial settlement for the securities will be made in immediately available funds. Secondary market trading between DTC participants will occur in the ordinary way in accordance with DTC’s rules and will be settled in immediately available funds. Secondary market trading between Euroclear participants and/or Clearstream participants will occur in the ordinary way in accordance with the applicable rules and operating procedures of Euroclear and Clearstream, as applicable, and will be settled using the procedures applicable to conventional eurobonds in immediately available funds.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Euroclear participants or Clearstream participants, on the other, will be effected in DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its U.S. depositary; however, such cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in such system in accordance with
its rules and procedures and within its established deadlines (European time). The relevant European international clearing system will, if the transaction meets its settlement requirements, deliver instructions to its U.S. depositary to take action to effect final settlement on its behalf by delivering or receiving securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear participants and Clearstream participants may not deliver instructions directly to their respective U.S. depositaries.
Because of time-zone differences, credits of securities received in Euroclear or Clearstream as a result of a transaction with a DTC participant will be made during subsequent securities settlement processing and dated the business day following the DTC settlement date. Credits or any transactions in securities settled during this processing will be reported to the relevant Euroclear or Clearstream participants on that following business day. Cash received in Euroclear or Clearstream as a result of sales of debt securities by or through a Euroclear participant or a Clearstream participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Euroclear or Clearstream cash account only as of the business day following settlement in DTC.
Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of securities among participants of DTC, Euroclear and Clearstream, they are under no obligation to perform or continue to perform these procedures and these procedures may be discontinued at any time.
Redemption or Repayment
If there are any provisions regarding redemption or repayment applicable to your debt security, we will describe them in your prospectus supplement. We or our affiliates may purchase debt securities from investors who are willing to sell from time to time, either in the open market at prevailing prices or in private transactions at negotiated prices. Debt securities that we or they purchase may, at our discretion, be held, resold or canceled.
Mergers and Similar Transactions
We are generally permitted under the indentures to merge or consolidate with another corporation or other entity. We are also permitted under the indentures to sell all or substantially all of our assets to another corporation or other entity. With regard to any series of debt securities and other than as set forth in your prospectus supplement, however, we may not take any of these actions unless all the following conditions, among other things, are met:
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If the successor entity in the transaction is not the Company, the successor entity must be organized as a corporation, limited liability company, partnership or trust and must expressly assume our obligations under the debt securities of that series and the indenture with respect to that series. The successor entity may be organized under the laws of any jurisdiction, whether in the United States or elsewhere.
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Immediately after the transaction, no default under the debt securities of that series has occurred and is continuing. For this purpose, “default under the debt securities of that series” means an event of default with respect to that series or any event that would be an event of default with respect to that series if the requirements for giving us default notice and for our default having to continue for a specific period of time were disregarded. We describe these matters below under “— Default, Remedies and Waiver of Default.”
If the conditions described above are satisfied with respect to the debt securities of any series, we will not need to obtain the approval of the holders of those debt securities in order to merge or consolidate or to sell all or substantially all our assets. Also, these conditions will apply only if we wish to merge or consolidate with another entity or sell all or substantially all of our assets to another entity. We will not need to satisfy these conditions if we enter into other types of transactions, including any transaction in which we acquire the stock or assets of another entity, any transaction that involves a change of control of the Company but in which we do not merge or consolidate and any transaction in which we sell less than substantially all our assets.
The successor entity will be substituted for the Company with respect to the debt securities of any series and under the indenture with the same effect as if it had been an original party to the indenture, and, except in the case of a lease, the Company will be relieved from any further obligations and covenants under the indenture.
Subordination Provisions
Holders of subordinated debt securities should recognize that contractual provisions in the subordinated debt indenture may prohibit us from making payments on those securities. Subordinated debt securities are subordinate and junior in right of payment, to the extent and in the manner stated in the subordinated debt indenture, to all of our senior debt, as defined in the subordinated debt indenture, including all debt securities we have issued and will issue under the senior debt indenture.
The subordinated debt indenture will define “senior debt” as:
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our indebtedness under or in respect of our senior secured revolving credit facility, whether for principal, interest (including interest accruing after the filing of a petition initiating any proceeding pursuant to any bankruptcy law, whether or not the claim for such interest is allowed as a claim in such proceeding), reimbursement obligations, fees, commissions, expenses, indemnities or other amounts; and
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any other indebtedness permitted under the terms of that indenture, unless the instrument under which such indebtedness is incurred expressly provides that it is on a parity with or subordinated in right of payment to the subordinated debt securities.
Notwithstanding the foregoing, “senior debt” will not include: (i) equity interests; (ii) any liability for taxes; (iii) any indebtedness to any of our subsidiaries or affiliates; (iv) any trade payables; or (v) any indebtedness incurred in violation of the subordinated debt indenture.
We may modify the subordination provisions, including the definition of senior debt, with respect to one or more series of subordinated debt securities. Such modifications will be set forth in the applicable prospectus supplement.
The subordinated debt indenture provides that, unless all principal of and any premium or interest on the senior debt has been paid in full, no payment or other distribution may be made in respect of any subordinated debt securities in the following circumstances:
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in the event of any insolvency or bankruptcy proceedings, or any receivership, liquidation, reorganization, assignment for creditors or other similar proceedings or events involving us or our assets;
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(i) in the event and during the continuation of any default in the payment of principal of, and any premium and interest on, any senior debt beyond any applicable grace period or (ii) in the event that any event of default with respect to any senior debt has occurred and is continuing, permitting the holders of that senior debt (or a trustee) to accelerate the maturity of that senior debt, whether or not the maturity is in fact accelerated (unless, in the case of (i) or (ii), the payment default or event of default has been cured or waived or ceased to exist and any related acceleration has been rescinded) or (iii) in the event that any judicial proceeding is pending with respect to a payment default or event of default described in (i) or (ii); or
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in the event that any subordinated debt securities have been declared due and payable before their stated maturity.
If the trustee under the subordinated debt indenture or any holders of the subordinated debt securities receive any payment or distribution that is prohibited under the subordination provisions, then the trustee or the holders will have to repay that money to the holders of the senior debt.
Even if the subordination provisions prevent us from making any payment when due on the subordinated debt securities of any series, we will be in default on our obligations under that series if we do not make the payment when due. This means that the trustee under the subordinated debt indenture and the holders of
that series can take action against us, but they will not receive any money until the claims of the holders of senior debt have been fully satisfied.
The subordinated debt indenture allows the holders of senior debt to obtain a court order requiring us and any holder of subordinated debt securities to comply with the subordination provisions.
Defeasance, Covenant Defeasance and Satisfaction and Discharge
When we use the term defeasance, we mean discharge from some or all of our obligations under the applicable indenture. If we deposit with the trustee funds or government securities, or if so provided in your prospectus supplement, obligations other than government securities, sufficient to make payments on any series of debt securities on the dates those payments are due and payable and other specified conditions are satisfied, then, at our option, either of the following will occur:
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we will be discharged from our obligations with respect to the debt securities of such series (“legal defeasance”); or
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we will be discharged from any covenants we make in the applicable indenture for the benefit of such series and the related events of default will no longer apply to us (“covenant defeasance”).
If we defease any series of debt securities, the holders of such securities will not be entitled to the benefits of the applicable indenture, except for our obligations to register the transfer or exchange of such securities, replace stolen, lost or mutilated securities or maintain paying agencies and hold moneys for payment in trust. In case of covenant defeasance, our obligation to pay principal of, and any premium and interest on, the applicable series of debt securities will also survive.
We will be required to deliver to the trustee an opinion of counsel that the deposit and related defeasance would not cause the holders of the applicable series of debt securities to recognize gain or loss for federal income tax purposes. If we elect legal defeasance, that opinion of counsel must be based upon a ruling from the United States Internal Revenue Service or a change in law to that effect.
In addition, we may satisfy and discharge all our obligations under the indenture with respect to debt securities of any series, other than our obligation to register the transfer of and exchange debt securities of that series, provided that we either:
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deliver all outstanding debt securities of that series to the trustee for cancellation; or
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all such debt securities not so delivered for cancellation have either become due and payable or will become due and payable at their stated maturity within one year or are to be called for redemption within one year, and in the case of this bullet point, we have deposited with the trustee in trust an amount of cash sufficient to pay the entire indebtedness of such debt securities, including interest to the stated maturity or applicable redemption date.
No Personal Liability
No past, present or future director, officer, employee, incorporator, member, manager, partner (whether general or limited), or stockholder of the Company, as such, will have any liability for any obligations of us under the debt securities or the indentures or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each holder of debt securities by accepting a debt security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the debt securities. The waiver may not be effective to waive liabilities under the federal securities laws.
Default, Remedies and Waiver of Default
You will have special rights if an event of default with respect to your debt security occurs and is continuing, as described in this subsection.
Events of Default
Unless your prospectus supplement says otherwise, when we refer to an event of default with respect to any series of debt securities, we mean any of the following:
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we do not pay the principal of and any premium on any debt security of that series on the due date;
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we do not pay interest on any debt security of that series within 30 days after the due date;
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we do not deposit a sinking fund payment with regard to any debt security of that series within 60 days after the due date, but only if the payment is required under provisions described in the applicable prospectus supplement;
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we remain in breach of our covenants regarding mergers or sales of substantially all of our assets or any other covenant we make in the indenture for the benefit of the relevant series, for 90 days after we receive a notice of default stating that we are in breach and requiring us to remedy the breach, which notice must be sent by the trustee or the holders of at least 25% in principal amount of the relevant series of debt securities;
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we file for bankruptcy or other events of bankruptcy, insolvency or reorganization relating to the Company occur; or
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if the applicable prospectus supplement states that any additional event of default applies to the series, that event of default occurs.
We may change, eliminate, or add to the events of default with respect to any particular series or any particular debt security or debt securities within a series, as indicated in the applicable prospectus supplement.
Remedies if an Event of Default Occurs
If you are the holder of a subordinated debt security, all the remedies available upon the occurrence of an event of default under the subordinated debt indenture will be subject to the restrictions on the subordinated debt securities described above under “— Subordination Provisions.”
Except as otherwise specified in the applicable prospectus supplement, if an event of default has occurred with respect to any series of debt securities and has not been cured or waived, the trustee or the holders of not less than 25% in principal amount of all debt securities of that series then outstanding may declare the entire principal amount of the debt securities of that series to be due immediately. Except as otherwise specified in the applicable prospectus supplement, if the event of default occurs because of events in bankruptcy, insolvency or reorganization relating to the Company, the entire principal amount of the debt securities of that series will be automatically accelerated, without any action by the trustee or any holder.
Each of the situations described above is called an acceleration of the stated maturity of the affected series of debt securities. Except as otherwise specified in the applicable prospectus supplement, if the stated maturity of any series is accelerated and a judgment for payment has not yet been obtained, the holders of a majority in principal amount of the debt securities of that series may cancel the acceleration for the entire series.
If an event of default occurs, the trustee will have special duties. In that situation, the trustee will be obligated to use those of its rights and powers under the relevant indenture, and to use the same degree of care and skill in doing so, that a prudent person would use in that situation in conducting his or her own affairs.
Except as described in the prior paragraph, the trustee is not required to take any action under the relevant indenture at the request of any holders unless the holders offer the trustee protection satisfactory to the Trustee from expenses and liability. This is called an indemnity. If the trustee is provided with an indemnity satisfactory to it, the holders of a majority in principal amount of all debt securities of the relevant series may direct the time, method and place of conducting any lawsuit or other formal legal action seeking any remedy available to the trustee with respect to that series. These majority holders may also direct the trustee in performing any other action under the relevant indenture with respect to the debt securities of that series. However, the trustee may refuse to follow any direction that conflicts with law or the relevant indenture or that the trustee determines is unduly prejudicial to the rights of other holders (it being understood that the trustee does not have an affirmative duty to ascertain whether or not any such direction unduly
prejudices the rights of such holders) or would involve the trustee in personal liability; provided, however, that the trustee may take any other action deemed proper by the trustee that is not inconsistent with such direction.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to any debt security, all of the following must occur:
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the holder of your debt security must give the trustee written notice that an event of default has occurred with respect to the debt securities of your series, and the event of default must not have been cured or waived;
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the holders of not less than 25% in principal amount of all debt securities of your series must make a written request that the trustee take action because of the default, and they or other holders must offer to the trustee indemnity satisfactory to the trustee against the cost and other liabilities of taking that action;
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the trustee must not have taken action for 60 days after the above steps have been taken; and
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during those 60 days, the holders of a majority in principal amount of the debt securities of your series must not have given the trustee directions that are inconsistent with the written request of the holders of not less than 25% in principal amount of the debt securities of your series.
You are entitled at any time, however, to bring a lawsuit for the payment of money due on your debt security on or after its stated maturity (or, if your debt security is redeemable, on or after its redemption date).
Book-entry and other indirect owners should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and how to declare or cancel an acceleration of the maturity.
Waiver of Default
The holders of not less than a majority in principal amount of the debt securities of any series may waive a default for all debt securities of that series. If this happens, the default will be treated as if it has not occurred. No one can waive a payment default on any debt security, however, without the approval of the particular holder of that debt security.
Annual Information about Defaults to the Trustee
We will furnish each trustee every year a written statement of two of our officers certifying that to their knowledge we are in compliance with the applicable indenture and the debt securities issued under it, or else specifying any default under the applicable indenture.
Modifications and Waivers
There are four types of changes we can make to either indenture and the debt securities or series of debt securities issued under that indenture.
Changes Requiring Each Holder’s Approval
First, there are changes that cannot be made without the approval of each holder of a debt security affected by the change under the applicable indenture, including, among others:
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changing the stated maturity for any principal or interest payment on such debt security;
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reducing the principal amount, the amount payable on acceleration of the maturity after a default, the interest rate or the redemption price for such debt security;
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permitting redemption of such debt security if not previously permitted;
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impairing any right such holder may have to require purchase of its debt security;
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if such debt security constitutes a convertible debt security, impairing any right that a holder may have to convert such debt security;
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changing the currency of any payment on such debt security;
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changing the place of payment on such debt security;
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impairing such holder’s right to sue for payment of any amount due on its debt security;
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reducing the percentage in principal amount of the debt securities of any one or more affected series, taken separately or together, as applicable, and whether comprising the same or different series or less than all of the debt securities of a series, the approval of whose holders is needed to change the indenture or those debt securities or waive our compliance with the applicable indenture or to waive defaults; and
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changing the provisions of the applicable indenture dealing with modification and waiver in any other respect, except to increase any required percentage referred to above or to add to the provisions that cannot be changed or waived without approval of the holder of each affected debt security.
Changes Not Requiring Approval
The second type of change does not require any approval by holders of the debt securities affected. These changes are limited to clarifications and changes that would not adversely affect any debt securities of any series in any material respect. Nor do we need any approval to make changes that affect only debt securities to be issued under the applicable indenture after the changes take effect. We may also make changes or obtain waivers that do not adversely affect a particular debt security, even if they affect other debt securities. In those cases, we do not need to obtain the approval of the holder of the unaffected debt security; we need only obtain any required approvals from the holders of the affected debt securities. We may also make changes to conform the text of the applicable indenture or any debt securities to any provision of the “Description of Debt Securities “in this prospectus or the comparable section in your prospectus supplement, to the extent such provision was intended to be a verbatim recitation of a provision of such indenture or debt securities.
Modification of Subordination Provisions
We may not amend the indenture related to subordinated debt securities to alter the subordination of any outstanding subordinated debt securities without the written consent of each holder of senior debt then outstanding who would be adversely affected (or the group or representative thereof authorized or required to consent thereto pursuant to the instrument creating or evidencing, or pursuant to which there is outstanding, such senior debt). In addition, we may not modify the subordination provisions of the indenture related to subordinated debt securities in a manner that would adversely affect the subordinated debt securities of any one or more series then outstanding in any material respect, without the consent of the holders of a majority in aggregate principal amount of all affected series then outstanding, voting together as one class (and also of any affected series that by its terms is entitled to vote separately as a series, as described below).
Changes Requiring Majority Approval
Any other change to a particular indenture and the debt securities issued under that indenture would require the following approval:
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If the change affects only particular debt securities within a series issued under the applicable indenture, it must be approved by the holders of a majority in principal amount of such particular debt securities; or
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If the change affects debt securities of more than one series issued under the applicable indenture, it must be approved by the holders of a majority in principal amount of all debt securities of all such series affected by the change, with all such affected debt securities voting together as one class for this purpose and such affected debt securities of any series potentially comprising fewer than all debt securities of such series, in each case, except as may otherwise be provided pursuant to such indenture
for all or any particular debt securities of any series. This means that modification of terms with respect to certain securities of a series could be effectuated without obtaining the consent of the holders of a majority in principal amount of other securities of such series that are not affected by such modification.
The same majority approval would be required for us to obtain a waiver of any of our covenants in either indenture. Our covenants include the promises we make about merging or selling substantially all of our assets, which we describe above under “— Mergers and Similar Transactions.” If the holders approve a waiver of a covenant, we will not have to comply with it. The holders, however, cannot approve a waiver of any provision in a particular debt security, or in the applicable indenture as it affects that debt security, that we cannot change without the approval of the holder of that debt security as described above in “— Changes Requiring Each Holder’s Approval,” unless that holder approves the waiver.
We may issue particular debt securities or a particular series of debt securities, as applicable, that are entitled, by their terms, to separately approve matters (for example, modification or waiver of provisions in the applicable indenture) that would also, or otherwise, require approval of holders of a majority in principal amount of all affected debt securities of all affected series issued under such indenture voting together as a single class. Any such affected debt securities or series of debt securities would be entitled to approve such matters (i) pursuant to such special rights by consent of holders of a majority in principal amount of such affected debt securities or series of debt securities voting separately as a class and (ii) in addition, as described above, except as may otherwise be provided pursuant to the applicable indenture for such debt securities or series of debt securities, by consent of holders of a majority in principal amount of such affected debt securities or series of debt securities and all other affected debt securities of all series issued under such indenture voting together as one class for this purpose. We may issue series or debt securities of a series having these or other special voting rights without obtaining the consent of or giving notice to holders of outstanding debt securities or series.
Book-entry and other indirect owners should consult their banks or brokers for information on how approval may be granted or denied if we seek to change an indenture or any debt securities or request a waiver.
Special Rules for Action by Holders
Only holders of outstanding debt securities of the applicable series will be eligible to take any action under the applicable indenture, such as giving a notice of default, declaring an acceleration, approving any change or waiver or giving the trustee an instruction with respect to debt securities of that series. Also, we will count only outstanding debt securities in determining whether the various percentage requirements for taking action have been met. Any debt securities owned by us or any of our affiliates or surrendered for cancellation or for payment or redemption, for which money has been set aside in trust, are not deemed to be outstanding. Any required approval or waiver must be given by written consent.
In some situations, we may follow special rules in calculating the principal amount of debt securities that are to be treated as outstanding for the purposes described above. This may happen, for example, if the principal amount is payable in a non-U.S. dollar currency, increases over time or is not to be fixed until maturity.
We will generally be entitled to set any day as a record date for the purpose of determining the holders that are entitled to take action under either indenture. In certain limited circumstances, only the trustee will be entitled to set a record date for action by holders. If we or the trustee sets a record date for an approval or other action to be taken by holders, that vote or action may be taken only by persons or entities who are holders on the record date and must be taken during the period that we specify for this purpose, or that the trustee specifies if it sets the record date. We or the trustee, as applicable, may shorten or lengthen this period from time to time. This period, however, may not extend beyond the 180th day after the record date for the action. In addition, record dates for any global debt security may be set in accordance with procedures established by the depositary from time to time. Accordingly, record dates for global debt securities may differ from those for other debt securities.
Form, Exchange and Transfer
If any debt securities cease to be issued in registered global form, they will be issued:
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only in fully registered form;
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without interest coupons; and
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unless we indicate otherwise in your prospectus supplement, in denominations of $1,000 and integral multiples of $1,000.
Holders may exchange their debt securities for debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. You may not exchange your debt securities for securities of a different series or having different terms, unless your prospectus supplement and the supplemental indenture with respect to your debt securities provide for such exchange.
Holders may exchange or transfer their debt securities at the office of the trustee. They may also replace lost, stolen, destroyed or mutilated debt securities at that office. We have appointed the trustee to act as our agent for registering debt securities in the names of holders and transferring and replacing debt securities. We may appoint another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or exchange their debt securities, but they may be required to pay for any tax or other governmental charge associated with the exchange or transfer. The transfer or exchange, and any replacement, will be made only if our transfer agent is satisfied with the holder’s proof of legal ownership. The transfer agent may require an indemnity before replacing any debt securities.
If we have designated additional transfer agents for your debt security, they will be named in your prospectus supplement. We may appoint additional transfer agents or cancel the appointment of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities of any series are redeemable and we redeem less than all those debt securities, we may block the transfer or exchange of those debt securities during the period beginning 15 days before the day we mail the notice of redemption and ending on the day of that mailing, in order to freeze the list of holders to prepare the mailing. We may also refuse to register transfers of or exchange any debt security selected for redemption, except that we will continue to permit transfers and exchanges of the unredeemed portion of any debt security being partially redeemed.
If a debt security is issued as a global debt security, only DTC or other depositary will be entitled to transfer and exchange the debt security as described in this subsection because the depositary will be the sole holder of the debt security.
The rules for exchange described above apply to exchange of debt securities for other debt securities of the same series and kind. If a debt security is convertible, exercisable or exchangeable into or for a different kind of security, such as one that we have not yet issued, or for other property, the rules governing that type of conversion, exercise or exchange will be described in the applicable prospectus supplement.
Payments
We will pay interest, principal and other amounts payable with respect to the debt securities of any series to the holders of record of those debt securities as of the record dates and otherwise in the manner specified below or in the prospectus supplement for that series.
We will make payments on a global debt security in accordance with the applicable policies of the depositary as in effect from time to time. Under those policies, we will pay directly to the depositary, or its nominee, and not to any indirect owners who own beneficial interests in the global debt security. An indirect owner’s right to receive those payments will be governed by the rules and practices of the depositary and its participants.
We will make payments on a debt security in non-global, registered form as follows. We will pay interest that is due on an interest payment date by check mailed on the interest payment date to the holder at his or her address shown on the trustee’s records as of the close of business on the regular record date. We will make all other payments by check at the paying agent described below, against surrender of the debt
security. All payments by check will be made in next-day funds — i.e., funds that become available on the day after the check is cashed.
Alternatively, if a non-global debt security has a face amount of at least $1,000,000 and the holder asks us to do so, we will pay any amount that becomes due on the debt security by wire transfer of immediately available funds to an account at a bank in New York City, on the due date. To request wire payment, the holder must give the paying agent appropriate wire transfer instructions at least five business days before the requested wire payment is due. In the case of any interest payment due on an interest payment date, the instructions must be given by the person or entity who is the holder on the relevant regular record date. In the case of any other payment, payment will be made only after the debt security is surrendered to the paying agent. Any wire instructions, once properly given, will remain in effect unless and until new instructions are given in the manner described above.
Book-entry and other indirect owners should consult their banks or brokers for information on how they will receive payments on their debt securities.
Regardless of who acts as paying agent, subject to applicable escheatment law, all money paid by us to a paying agent that remains unclaimed at the end of two years after the amount is due to a holder will be repaid to us. After that two-year period, the holder may look only to us for payment and not to the trustee, any other paying agent or anyone else.
Paying Agents
We may appoint one or more financial institutions to act as our paying agents, at whose designated offices debt securities in non-global entry form may be surrendered for payment at their maturity. We call each of those offices a paying agent. We may add, replace or terminate paying agents from time to time. We may also choose to act as our own paying agent. We will specify in the prospectus supplement for your debt security the initial location of each paying agent for that debt security. We must notify the trustee of changes in the paying agents.
Notices
Notices to be given to holders of a global debt security will be given only to the depositary, in accordance with its applicable policies as in effect from time to time. Notices to be given to holders of debt securities not in global form will be sent by mail to the respective addresses of the holders as they appear in the trustee’s records, and will be deemed given when mailed. Neither the failure to give any notice to a particular holder, nor any defect in a notice given to a particular holder, will affect the sufficiency of any notice given to another holder.
Book-entry and other indirect owners should consult their banks or brokers for information on how they will receive notices.
Our Relationship with the Trustee
The prospectus supplement for your debt security will describe any material relationships we may have with the trustee with respect to that debt security.
The same financial institution may initially serve as the trustee for our senior debt securities and subordinated debt securities. Consequently, if an actual or potential event of default occurs with respect to any of these securities, the trustee may be considered to have a conflicting interest for purposes of the Trust Indenture Act of 1939. In that case, the trustee may be required to resign under one or more of the indentures, and we would be required to appoint a successor trustee. For this purpose, a “potential” event of default means an event that would be an event of default if the requirements for giving us default notice or for the default having to exist for a specific period of time were disregarded.
DESCRIPTION OF DEPOSITARY SHARES
We may offer fractional shares of preferred stock, rather than full shares of preferred stock. If we decide to offer fractional shares of preferred stock, we will issue receipts for depositary shares. Each depositary share will represent a fraction of a share of a particular series of preferred stock. An accompanying prospectus supplement will indicate that fraction. The shares of preferred stock represented by depositary shares will be deposited under a depositary agreement between us and a depositary that is a bank or trust company that meets certain requirements and is selected by us. Each owner of a depositary share will be entitled to all of the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering.
We have summarized selected provisions of the depositary agreement and the depositary receipts. The form of the depositary agreement and the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC in connection with any offering of depositary shares, and you should read those documents for the full legal text of the matters described in this section and in the prospectus supplement relating to the issue and for provisions that may be important to you. See “Where You Can Find More Information” above for information on how to obtain copies of these documents.
The particular terms of any issue of depositary shares will be described in the prospectus supplement relating to the issue. Those terms may vary from the terms described in this section. As you read this section, please remember that the specific terms of your depositary shares as described in your prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in this section. If there are any differences between your prospectus supplement and this prospectus, your prospectus supplement will control. Thus, the statements we make in this section may not apply to your depositary shares.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the depositary will distribute such dividends to the record holders of such depositary shares. If the distributions are in property other than cash, the depositary will distribute the property to the record holders of the depositary shares. If, however, the depositary determines that it is not feasible to make the distribution of property, the depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the holders of the preferred stock.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the depositary will redeem the depositary shares from the proceeds received by the depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date, which will be the same date as the record date for the preferred stock, may instruct the depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action that the depositary deems necessary in order to enable the depositary to do so. The depositary will abstain from voting shares of the preferred stock to the extent it does not receive specific instructions from the holders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any provision of the depositary agreement may be amended by agreement between the depositary and us. Any amendment that materially and adversely alters the rights of the holders of depositary shares will not, however, be effective unless such amendment has been approved by the holders of at least a majority of the depositary shares then outstanding. The depositary agreement may be terminated by the depositary or us only if (a) all outstanding depositary shares have been redeemed or (b) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and such distribution has been distributed to the holders of depositary receipts.
Charges of Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary arrangements. We will pay charges of the depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts will pay other taxes (including transfer taxes) and governmental charges and any other charges, including a fee for the withdrawal of shares of preferred stock upon surrender of depositary receipts, as are expressly provided in the depositary agreement to be at the expense of those holders.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the depositary, subject to the terms of the depositary agreement, the owner of the depositary shares may demand delivery of the number of whole shares of preferred stock and all money and other property, if any, represented by those depositary shares. Partial shares of preferred stock will not be issued. If the depositary receipts delivered by the holder evidence a number of depositary shares in excess of the number of whole shares of preferred stock to be withdrawn, the depositary will deliver to such holder at the same time a new depositary receipt evidencing the excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares under the depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
The depositary will forward to holders of depositary receipts all reports and communications from us that are delivered to the depositary and that we are required to furnish to the holders of the preferred stock.
Neither we nor the depositary will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and we will not be obligated to prosecute or defend any legal proceeding in respect of any depositary shares or preferred stock unless satisfactory indemnity is furnished. We may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be competent and on documents believed to be genuine.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering notice to us of its election to do so, and we may at any time remove the depositary. Any such resignation or removal will take effect upon the appointment of a successor depositary and its acceptance of such appointment. Such successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and meeting certain combined capital surplus requirements.
DESCRIPTION OF WARRANTS
General Description of Warrants
We may issue warrants for the purchase of debt securities, preferred stock or common stock. Warrants may be issued independently or together with other securities and may be attached to or separate from any offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between us and a bank or trust company, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants and will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. A copy of the warrant agreement will be filed with the SEC in connection with the offering of warrants.
Debt Warrants
The prospectus supplement relating to a particular issue of warrants to purchase debt securities will describe the terms of those warrants, including the following, as applicable:
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the title of the warrants;
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the offering price for the warrants;
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the aggregate number of the warrants;
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the designation and terms of the debt securities that may be purchased upon exercise of the warrants;
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the designation and terms of the debt securities that the warrants are issued with and the number of warrants issued with each debt security;
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the date from and after which the warrants and any debt securities issued with them will be separately transferable;
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the principal amount of debt securities that may be purchased upon exercise of a warrant and the price at which the debt securities may be purchased upon exercise;
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the dates on which the right to exercise the warrants will commence and expire;
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the minimum or maximum amount of the warrants that may be exercised at any one time;
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whether the warrants represented by the warrant certificates or the debt securities that may be issued upon exercise of the warrants will be issued in registered or bearer form;
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information relating to book-entry procedures;
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the currency or currency units in which the offering price and the exercise price are payable;
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a discussion of material U.S. federal income tax considerations;
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anti-dilution provisions of the warrants;
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redemption or call provisions applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
Stock Warrants
The prospectus supplement relating to a particular issue of warrants to purchase common stock or preferred stock will describe the terms of the common stock warrants and preferred stock warrants, including the following, as applicable:
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the title of the warrants;
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the offering price for the warrants;
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the aggregate number of the warrants;
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the designation and terms of the common stock or preferred stock that may be purchased upon exercise of the warrants;
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the designation and terms of the securities that the warrants are issued with and the number of warrants issued with each security;
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the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
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the number of shares of common stock or preferred stock that may be purchased upon exercise of a warrant and the price at which the shares may be purchased upon exercise;
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the dates on which the right to exercise the warrants commence and expire;
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the minimum or maximum amount of the warrants that may be exercised at any one time;
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the currency or currency units in which the offering price and the exercise price are payable;
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a discussion of material U.S. federal income tax considerations;
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anti-dilution provisions of the warrants;
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redemption or call provisions applicable to the warrants;
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants; and
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any other information we think is important about the warrants.
Exercise of Warrants
Each warrant will entitle the holder of the warrant to purchase at the exercise price set forth in the applicable prospectus supplement the principal amount of debt securities or shares of preferred stock or common stock being offered. Holders may exercise warrants at any time up to the close of business on the expiration date set forth in the applicable prospectus supplement. After the close of business on the expiration date, unexercised warrants will be void. Holders may exercise warrants as set forth in the prospectus supplement relating to the warrants being offered.
Until you exercise your warrants to purchase our debt securities, preferred stock or common stock, you will not have any rights as a holder of our debt securities, preferred stock or common stock, as the case may be, by virtue of your ownership of warrants.
PLAN OF DISTRIBUTION
We may sell securities described in this prospectus and any accompanying prospectus supplement through underwriters, through broker-dealers, through agents, on one or more exchanges, directly to one or more purchasers, including existing stockholders, through a combination of any of the foregoing methods of sale, or through any other method permitted by applicable law.
We will prepare a prospectus supplement for each offering that will disclose the terms of the offering, including the name or names of any underwriters, dealers, or agents, the purchase price of the securities and the proceeds to us from the sale, any underwriting discounts, and other items constituting compensation to underwriters, dealers, or agents.
We will fix a price or prices of our securities at:
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market prices prevailing at the time of any sale under this registration statement;
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prices related to market prices; or
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negotiated prices.
We may change the price of the securities offered from time to time.
If we use underwriters or dealers in the sale, they will acquire the securities for their own account, and they may resell these securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price, or at varying prices determined at the time of sale. The securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. Unless otherwise disclosed in the prospectus supplement, the obligations of the underwriters to purchase securities will be subject to certain conditions precedent, and the underwriters will be obligated to purchase all of the securities offered by the prospectus supplement if any of the securities are purchased. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
We may sell the securities through agents designated by us from time to time. We will name any agent involved in the offering and sale of the securities for which this prospectus is delivered, and disclose any commissions payable by us to the agent or the method by which the commissions can be determined, in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a best efforts basis for the period of its appointment.
Offers to purchase securities may be solicited directly by us and the sale thereof may be made by us directly to institutional investors or others, who may be deemed to be underwriters within the meaning of the Securities Act with respect to any resale thereof. The terms of any such sales will be described in the prospectus supplement relating thereto. We may use electronic media, including the internet, to sell offered securities directly.
We may engage in at-the-market offerings and offer our securities into an existing trading market in accordance with Rule 415(a)(4) under the Securities Act on the terms described in the prospectus supplement relating thereto. Underwriters, dealers, and agents who participate in any at-the-market offerings will be described in the prospectus supplement relating thereto.
We may agree to indemnify underwriters, dealers, and agents who participate in the distribution of securities against certain liabilities to which they may become subject in connection with the sale of the securities, including liabilities arising under the Securities Act.
Certain of the underwriters and their affiliates may be customers of, may engage in transactions with and may perform services for us or our affiliates in the ordinary course of business.
A prospectus and accompanying prospectus supplement in electronic form may be made available on the websites maintained by the underwriters. The underwriters may agree to allocate a number of securities for sale to their online brokerage account holders. Such allocations of securities for internet distributions will be made on the same basis as other allocations. In addition, securities may be sold by the underwriters to securities dealers who resell securities to online brokerage account holders.
To the extent required, this prospectus may be amended or supplemented from time to time to describe a specific plan of distribution. The place and time of delivery for the securities in respect of which this prospectus is delivered will be set forth in the accompanying prospectus supplement.
In connection with offerings of securities under the registration statement of which this prospectus forms a part and in compliance with applicable law, underwriters, brokers, or dealers may engage in transactions that stabilize or maintain the market price of the securities at levels above those that might otherwise prevail in the open market. Specifically, underwriters, brokers, or dealers may over-allot in connection with offerings, creating a short position in the securities for their own accounts. For the purpose of covering a syndicate short position or stabilizing the price of the securities, the underwriters, brokers, or dealers may place bids for the securities or effect purchases of the securities in the open market. Finally, the underwriters may impose a penalty whereby selling concessions allowed to syndicate members or other brokers or dealers for distribution of the securities in offerings may be reclaimed by the syndicate if the syndicate repurchases previously distributed securities in transactions to cover short positions, in stabilization transactions or otherwise. These activities may stabilize, maintain, or otherwise affect the market price of the securities, which may be higher than the price that might otherwise prevail in the open market, and, if commenced, may be discontinued at any time.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas. If certain legal matters in connection with an offering of the securities made by this prospectus and a related prospectus supplement are passed upon by counsel for the underwriters of such offering, that counsel will be named in the applicable prospectus supplement related to that offering.
EXPERTS
The consolidated financial statements of Antero Midstream Corporation as of December 31, 2023 and 2024, and for each of the years in the three-year period ended December 31, 2024, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2024 have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
PROSPECTUS
Antero Midstream Corporation
144,033,190 Shares of Common Stock
The securities to be offered and sold using this prospectus are currently issued and outstanding shares of our common stock. These shares of common stock may be offered and sold by the selling stockholders named in this prospectus or in any supplement to this prospectus from time to time in accordance with the provisions set forth under “Plan of Distribution.”
The selling stockholders may sell the shares of common stock offered by this prospectus from time to time on any exchange on which the shares of common stock are listed on terms to be negotiated with buyers. They may also sell the shares of common stock in private sales or through dealers or agents. The selling stockholders may sell the shares of common stock at prevailing market prices or at prices negotiated with buyers. The selling stockholders will be responsible for any commissions due to brokers, dealers or agents. We will be responsible for all other offering expenses. We will not receive any of the proceeds from the sale by the selling stockholders of the shares of common stock offered by this prospectus.
Our common stock is listed on the New York Stock Exchange under the symbol “AM.”
You should read carefully this prospectus, the documents incorporated by reference in this prospectus and any prospectus supplement before you invest. See “Risk Factors” beginning on page 2 of this prospectus for information on certain risks related to the purchase of shares of our common stock.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 12, 2025.
TABLE OF CONTENTS
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You should rely only on the information contained in this prospectus, any prospectus supplement and the documents we have incorporated by reference into this prospectus. Neither we nor the selling stockholders have authorized any dealer, salesperson or other person to provide you with additional or different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement are not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate and are not an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make an offer or solicitation in that jurisdiction. You should not assume that the information contained in this prospectus is accurate as of any date other than the date on the front cover of this prospectus, or that the information contained in any document incorporated by reference is accurate as of any date other than the date of such document, regardless of the time of delivery of this prospectus or any sale of a security. Our business, financial condition, results of operations and prospects may have changed since that date.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we have filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under this shelf registration process, the selling stockholders named in this prospectus or any supplement to this prospectus may, from time to time, offer and sell the common stock described in this prospectus in one or more offerings. This prospectus generally describes Antero Midstream Corporation and the common stock that the selling stockholders may offer. We may provide a prospectus supplement containing specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement (and in any related free writing prospectus that we may authorize to be provided to you) may also add or update any of the information contained in this prospectus or in the documents that we have incorporated by reference into this prospectus. Please read this prospectus, any applicable prospectus supplement and any related free writing prospectus, together with the information incorporated herein by reference as described under the heading “Where You Can Find More Information,” carefully before buying any of the securities being offered.
This prospectus contains summaries of certain provisions contained in some of the documents described herein, but reference is made to the actual documents for complete information. All of the summaries are qualified in their entirety by the actual documents. Copies of some of the documents referred to herein have been filed, will be filed or are incorporated by reference as exhibits to the registration statement of which this prospectus is a part, and you may obtain copies of those documents as described below under the heading “Where You Can Find More Information.”
WHERE YOU CAN FIND MORE INFORMATION
We have filed a registration statement with the SEC under the Securities Act of 1933, as amended (the “Securities Act”), that registers the offer and sale of the securities covered by this prospectus. The registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some information included in the registration statement from this prospectus.
In addition, we file annual, quarterly and current reports and other information with the SEC. Our SEC filings are available to the public at the SEC’s website at www.sec.gov. You may also access the information we file electronically with the SEC through our website at www.anteromidstream.com. We have not incorporated by reference into this prospectus the information included on our website, and you should not consider it to be a part of this prospectus.
We “incorporate by reference” information into this prospectus, which means that we disclose important information to you by referring you to documents filed separately with the SEC. The information incorporated by reference is deemed to be part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update information previously filed with the SEC, and may update or replace information in this prospectus and information previously filed with the SEC. You should not assume that the information in this prospectus is current as of any date other than the date on the cover page of this prospectus. You should not assume that the information contained in the documents incorporated by reference in this prospectus is accurate as of any date other than the respective dates of such documents.
We incorporate by reference the documents listed below and any future filings we make with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (excluding any information furnished and not filed with the SEC), after the date on which the registration statement was initially filed with the SEC until all offerings under the registration statement of which this prospectus forms a part are completed or terminated:
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the description of our common stock contained in our Registration Statement on Form 8-A/A filed on March 12, 2019, including any subsequent amendments or reports that we may file in the future for the purpose of updating such description, including Exhibit 4.9 to the 2024 Form 10-K.
These reports contain important information about us, our financial condition and our results of operations.
You may obtain copies of any of the documents incorporated by reference in this prospectus from the SEC through the SEC’s website at the address provided above. You also may request a copy of any document incorporated by reference in this prospectus (including exhibits to those documents specifically incorporated by reference in this prospectus), at no cost, by contacting us at:
Antero Midstream Corporation
1615 Wynkoop Street
Attention: Investor Relations
Denver, Colorado 80202
Telephone: (303) 357-7310
CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Some of the information in this prospectus and incorporated by reference into this prospectus may contain “forward-looking statements” within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act. All statements, other than statements of historical fact, included in this prospectus and incorporated by reference into this prospectus, regarding our strategy, future operations, financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are forward-looking statements. Words such as “may,” “assume,” “forecast,” “position,” “predict,” “strategy,” “expect,” “intend,” “plan,” “estimate,” “anticipate,” “believe,” “project,” “budget,” “potential,” or “continue,” and similar expressions are used to identify forward-looking statements, although not all forward-looking statements contain such identifying words. When considering these forward-looking statements, investors should keep in mind the risk factors and other cautionary statements in this prospectus. These forward-looking statements are based on management’s current beliefs, based on currently available information, as to the outcome and timing of future events. Factors that could cause our actual results to differ materially from the results contemplated by such forward-looking statements include:
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Antero Resources Corporation’s (“Antero Resources”) expected production and development plan;
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our ability to execute our business strategy;
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impacts to producer customers of insufficient storage capacity;
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our ability to obtain debt or equity financing on satisfactory terms to fund additional acquisitions, expansion projects, working capital requirements and the repayment or refinancing of indebtedness;
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natural gas, natural gas liquids (“NGLs”) and oil prices;
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our ability to realize the anticipated benefits of our investments in unconsolidated affiliates;
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our ability to execute our return of capital program;
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our ability to complete the construction of or purchase new gathering and compression, processing, water handling or other assets on schedule, at the budgeted cost or at all and the ability of such assets to operate as designed or at expected levels;
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costs of conducting our operations;
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impacts of geopolitical events, including the conflicts in Ukraine and in the Middle East, and world health events;
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actions taken by third-party producers, operators, processors and transporters;
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competition;
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government regulations and changes in laws;
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operating hazards, natural disasters, weather-related delays, casualty losses and other matters beyond our control;
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expectations regarding the amount and timing of litigation awards;
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pending legal or environmental matters;
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uncertainty regarding our future operating results;
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credit markets;
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our ability to achieve our greenhouse gas reduction targets and the costs associated therewith;
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general economic conditions; and
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our other plans, objectives, expectations and intentions contained in this prospectus that are not historical.
We caution investors that these forward-looking statements are subject to all of the risks and uncertainties incidental to our business, most of which are difficult to predict and many of which are beyond our control. These risks include, but are not limited to, commodity price volatility, inflation, supply
chain or other disruptions, environmental risks, Antero Resources’ drilling and completion and other operating risks, regulatory changes or changes in law, the uncertainty inherent in projecting Antero Resources’ future rates of production, cash flows and access to capital, the timing of development expenditures, impacts of world health events, cybersecurity risks, the state of markets for, and availability of, verified quality carbon offsets and the other risks described under the heading “Risk Factors” in this prospectus and in our Form 10-K for the year ended December 31, 2024, which is incorporated by reference herein, and our other reports filed with the SEC.
Should one or more of the risks or uncertainties described in this prospectus occur, or should underlying assumptions prove incorrect, our actual results and plans could differ materially from those expressed in any forward-looking statements.
All forward-looking statements, expressed or implied, included in this prospectus or incorporated herein by reference are expressly qualified in their entirety by this cautionary statement. This cautionary statement should also be considered in connection with any subsequent written or oral forward-looking statements that we or persons acting on our behalf may issue.
Except as otherwise required by applicable law, we disclaim any duty to update any forward-looking statements to reflect events or circumstances after the date of this prospectus.
ABOUT ANTERO MIDSTREAM CORPORATION
We are a growth-oriented midstream energy company formed to own, operate and develop midstream energy assets that primarily service Antero Resources’ production and completion activity in the Appalachian Basin located in West Virginia and Ohio. Our assets consist of gathering systems and compression facilities, water handling and blending facilities and interests in processing and fractionation plants. We conduct our operations and own our operating assets and ownership interests in Stonewall Gas Gathering LLC and a joint venture with MarkWest Energy Partners, L.P. through Antero Midstream Partners and its subsidiaries, all of which are wholly-owned.
Our principal executive offices are at 1615 Wynkoop Street, Denver, Colorado 80202. Our telephone number is (303) 357-7310. Our website is located at www.anteromidstream.com.
RISK FACTORS
An investment in our securities involves a significant degree of risk. Before you invest in our securities, you should carefully consider those risk factors included in our most recently filed Annual Report on Form 10-K, any of our subsequently filed Quarterly Reports on Form 10-Q and any of our subsequently filed Current Reports on Form 8-K, each of which is incorporated herein by reference, and those risk factors that may be included in any applicable prospectus supplement, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference, in evaluating an investment in our securities. If any of these risks were actually to occur, our business, financial condition or results of operations could be materially adversely affected. Additional risks not presently known to us or that we currently believe are immaterial may also significantly impair our business operations and financial condition. Please read “Cautionary Statement Regarding Forward-Looking Statements.”
USE OF PROCEEDS
We will not receive any proceeds from the sale of the common stock offered under this prospectus.
Any proceeds from the sale of common stock under this prospectus will be received by the selling stockholders.
DESCRIPTION OF CAPITAL STOCK
As of the date of this prospectus, our authorized capital stock consisted of 2,000,000,000 shares of common stock, $0.01 par value per share, of which 478,606,442 shares were issued and outstanding, and 100,000,000 shares of preferred stock, $0.01 par value per share, including 12,000 shares designated as “5.5% Series A Non-Voting Perpetual Preferred Stock” (the “Series A Preferred Stock”), of which 10,000 shares were issued and outstanding.
The following summary of our capital stock, certificate of incorporation, certificate of designations for the Series A Preferred Stock (the “Certificate of Designations”) and our bylaws does not purport to be complete and is qualified in its entirety by reference to the provisions of applicable law and to our certificate of incorporation and bylaws.
Common Stock
Except as provided by law or in a preferred stock designation (including the Certificate of Designations), holders of common stock are entitled to one vote for each share held of record on all matters submitted to a vote of the stockholders, have the right to vote for the election of directors and do not have cumulative voting rights. Subject to preferences that may be applicable to any outstanding shares or series of preferred stock (including the Series A Preferred Stock), holders of common stock are entitled to receive ratably such dividends (payable in cash, stock or otherwise), if any, as may be declared from time to time by our board of directors out of funds legally available for dividend payments. All outstanding shares of common stock are fully paid and non-assessable and the shares of common stock that will be issued under this prospectus will be fully paid and non-assessable.
The holders of common stock have no preferences or rights of conversion, exchange, pre-emption or other subscription rights. There are no redemption or sinking fund provisions applicable to the common stock. In the event of any liquidation, dissolution or winding-up of our affairs, holders of common stock will be entitled to share ratably in our assets that are remaining after payment or provision for payment of all of our debts and obligations and after liquidation payments to holders of outstanding shares of preferred stock, if any.
Preferred Stock
Our certificate of incorporation authorizes our board of directors, subject to any limitations prescribed by law, without further stockholder approval, to establish and to issue from time to time one or more series of preferred stock, par value $0.01 per share, covering up to an aggregate of 100,000,000 shares of preferred stock. Each series of preferred stock will cover the number of shares and will have the powers, preferences, rights, qualifications, limitations and restrictions determined by our board of directors, which may include, among others, dividend rights, liquidation preferences, voting rights, conversion rights, preemptive rights and redemption rights. Except as provided by law or in a preferred stock designation (including the Certificate of Designations), the holders of preferred stock will not be entitled to vote at or receive notice of any meeting of stockholders.
5.5% Series A Non-Voting Perpetual Preferred Stock
Dividends. Subject to the prior and superior rights of any senior securities with respect to dividends, holders of shares of Series A Preferred Stock are entitled to receive quarterly dividends on each share of Series A Preferred Stock, when, as and if declared by our board of directors out of funds legally available therefor, payable in cash on the 45th day following the end of each fiscal quarter of ours in each year or such other dates as our board of directors will approve, at a rate of 5.5% per annum on (i) the liquidation preference per share of Series A Preferred Stock and (ii) the amount of accrued and unpaid dividends for any prior dividend period on such share of Series A Preferred Stock, if any. Such dividends accrue and are cumulative from the original issue date, compound on each quarterly dividend payment date and are payable quarterly in arrears on each quarterly dividend payment date.
Conversion at the Option of the Holder. On or after March 12, 2029, each share of Series A Preferred Stock will be convertible, at any time and from time to time from and after such date, at the option of the
holder of the Series A Preferred Stock, into a number of shares of common stock equal to the conversion ratio in effect on the applicable conversion date, subject to certain limitations; provided that no shares of Series A Preferred Stock may be converted into shares of common stock at any time that any shares of the Series A Preferred Stock are held by The Antero Foundation, which held all of the Series A Preferred Shares outstanding as of the date of this prospectus; and provided further that, notwithstanding anything in the Certificate of Designation to the contrary, in no event will the aggregate number of shares of common stock issued pursuant to all conversions exceed 19.9% of the number of shares of common stock issued and outstanding on the date of issuance of the Series A Preferred Stock. The conversion ratio for each share of Series A Preferred Stock will be equal to (i) $1,000 per share, plus accrued but unpaid dividends as of the conversion date, divided by (ii) the volume weighted average price per share of common stock during the 10 trading days preceding the conversion date.
Redemption at the Option of the Company. Notwithstanding anything in the Certificate of Designation to the contrary, if we undergo a “Change of Control” as defined in the Certificate of Designation, or at any time on and after March 12, 2029, we, at our option, may redeem the Series A Preferred Stock in whole or in part, at a price equal to $1,000 per share, plus any accrued and unpaid dividends, payable in cash; provided that if any shares of the Series A Preferred Stock are held by The Antero Foundation at the time of such redemption, the price for redemption of each share of Series A Preferred Stock will be the greater of (i) $1,000 per share, plus any accrued but unpaid dividends and (ii) the fair market value of the Series A Preferred Stock as determined by a third party appraiser selected in good faith by us, subject to The Antero Foundation’s approval, which approval will not be unreasonably withheld or delayed.
Transfer. A holder of shares of our Series A Preferred Stock may transfer such holder’s shares of Series A Preferred Stock to (i) us or any subsidiary of ours or (ii) otherwise in a transaction pursuant to an effective registration statement under the Securities Act or pursuant to an available exemption from, or in a transaction not subject to, the registration requirements of the Securities Act and in accordance with applicable state securities laws, subject to compliance with the other requirements of the Certificate of Designation. The Certificate of Designation provides that in no event will a transfer of the Series A Preferred Stock be made if such transfer, or such transfer together with any other transfers, would result in us being required to register the Series A Preferred Stock under Section 12 of Exchange Act, or would otherwise trigger or subject us, or any subsidiary or other affiliate of ours, to the registration requirements of the Exchange Act with respect to the Series A Preferred Stock.
Liquidation Preference. In the event we voluntarily or involuntarily liquidate, dissolve or wind up, subject to the prior and superior rights of the holders of any senior securities, holders of shares of Series A Preferred Stock as of the record date set in connection therewith will be entitled to receive liquidating distributions in the amount of $1,000 per share of Series A Preferred Stock, in each case, plus an amount equal to any declared but unpaid dividends up to and including the date of such liquidation, out of assets legally available for distribution to our stockholders, before any distribution of assets is made to the holders of any junior securities, subject to certain limitations.
No Voting Rights. Holders of shares of Series A Preferred Stock do not have any voting rights, including the right to elect any directors, and their consent is not be required for taking any corporation action, except for any voting rights (including with respect to corporate actions) required by the General Corporation Law of the State of Delaware (“DGCL”) or our certificate of incorporation.
No Preemptive Rights. No shares of Series A Preferred Stock have any rights of preemption whatsoever as to any of our securities.
Rank. Our Series A Preferred Stock, with respect to dividend rights and rights upon the liquidation, winding-up or dissolution of us, ranks: (i) on parity with each class or series of equity securities of ours the terms of which will expressly provide that such class or series will rank on parity with the Series A Preferred Stock as to dividend rights or rights upon the liquidation, winding-up or dissolution of us, (ii) senior to the common stock and each other class or series of capital stock outstanding or established, the terms of which do not expressly provide that it ranks senior to or on parity with the Series A Preferred Stock as to dividend rights or as to rights upon the liquidation, winding-up or dissolution of us, and (iii) junior to each other class or series of capital stock outstanding or established, the terms of which expressly provide that
it ranks senior to the Series A Preferred Stock as to dividend rights or as to rights upon the liquidation, winding-up or dissolution of us.
Other Rights. The shares of Series A Preferred Stock do not have any rights, preferences, privileges or voting powers or relative, participating, optional or other special rights other than as set forth in our certificate of incorporation (including the Certificate of Designation for the Series A Preferred Stock) or as provided by applicable law.
Our Certificate of Incorporation and Our Bylaws
Among other things, our certificate of incorporation and bylaws:
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provide advance notice procedures with regard to stockholder nominations of candidates for election as directors or other stockholder proposals to be brought before meetings of our stockholders, which may preclude stockholders from bringing certain matters before our stockholders at an annual or special meeting;
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provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken;
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provide that, generally, to be timely, notice must be delivered to our corporate secretary at our principal executive offices not earlier than the close of business on the 120th day and not later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (unless the date of the annual meeting is more than 30 days before or more than 60 days after such anniversary date, in which case such notice must be delivered no earlier than the close of business on the 120th day prior to such annual meeting or later than the close of business on the later of the 90th day prior to such annual meeting or, if the first public announcement of the date of such annual meeting is less than 100 days prior to the date of such annual meeting, the 10th day after the first public disclosure of the date of such meeting by us);
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provide our board of directors the ability to authorize issuance of preferred stock in one or more series, which makes it possible for our board of directors to issue, without stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us and which may have the effect of deterring hostile takeovers or delaying changes in control or management of us;
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provide that the authorized number of directors may be changed only by resolution of our board of directors;
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provide that, subject to the rights of holders of any series of preferred stock to elect directors or fill vacancies in respect of such directors as specified in the related preferred stock designation and the terms of the Stockholders’ Agreement, dated as of October 9, 2018, by and among us and certain of our stockholders, including Antero Resources (as it may be amended from time to time, the “Stockholders’ Agreement”), all vacancies, including newly created directorships be filled by the affirmative vote of holders of a majority of directors then in office, even if less than a quorum, or by the sole remaining director, and will not be filled by our stockholders;
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provide that, subject to the rights of the holders of any series of preferred stock to elect directors under specified circumstances, if any, and the terms of the Stockholders’ Agreement, any action required or permitted to be taken by our stockholders must be effected at a duly called annual or special meeting of stockholders and may not be effected by any consent in writing in lieu of a meeting of such stockholders;
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provide that, subject to the rights of the holders of shares of any series of preferred stock, if any, to remove directors elected by such series of preferred stock pursuant to our certificate of incorporation (including any preferred stock designation thereunder) and the terms of the Stockholders’ Agreement, directors may be removed from office at any time, only for cause and by the holders of a majority of the voting power of all outstanding voting shares entitled to vote generally in the election of directors;
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provide that special meetings of our stockholders may only be called by the Chief Executive Officer, the Chairman of our board of directors or our board of directors pursuant to a resolution adopted by a majority of the total number of directors that we would have if there were no vacancies;
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provide that (i) Yorktown Partners LLC (“Yorktown”) and its affiliates are permitted to participate (directly or indirectly) in venture capital and other direct investments in corporations, joint ventures, limited liability companies and other entities conducting business of any kind, nature or description, (ii) Yorktown and its affiliates are permitted to have interests in, participate with, aid and maintain seats on the boards of directors or similar governing bodies of any such investments, in each case that may, are or will be competitive with the business of us and our subsidiaries or in the same or similar lines of business as us and our subsidiaries, or that could be suitable for us or our subsidiaries and (iii) we have, subject to limited exceptions, renounced, to the fullest extent permitted by law, any interest or expectancy in, or in being offered an opportunity to participate in, such corporate opportunities;
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provide that the provisions of our certificate of incorporation can only be amended or repealed by the affirmative vote of the holders of at least 662∕3% in voting power of the outstanding shares of the common stock entitled to vote thereon, voting together as a single class; provided, however, that so long as the Stockholders’ Agreement remains in effect, no provision of our certificate of incorporation may be amended, altered or repealed in any manner that would be contrary to or inconsistent with the terms of the Stockholders’ Agreement, and no amendment to the Stockholders’ Agreement (regardless of whether such amendment modifies any provision of the Stockholders’ Agreement to which our certificate of incorporation is subject) will be deemed an amendment of our certificate of incorporation; and
•
provide that our bylaws can be altered or repealed by (a) our board of directors or (b) our stockholders upon the affirmative vote of holders of at least 662∕3% of the voting power of common stock outstanding and entitled to vote thereon, voting together as a single class. However, so long as the Stockholders’ Agreement remains in effect, our board of directors and our stockholders may not approve any amendment, alteration or repeal of any provision of our bylaws, or the adoption of any new bylaw, that (a) would be contrary to or inconsistent with the terms of the Stockholders’ Agreement or (b) amends, alters or repeals certain portions of our certificate of incorporation; provided, however, that so long as the Stockholders’ Agreement remains in effect, the parties to the Stockholders’ Agreement may amend any provision of the Stockholders’ Agreement, and no amendment to the Stockholders’ Agreement (regardless of whether such amendment modifies any provision of the Stockholders’ Agreement to which the bylaws are subject) will be deemed an amendment of the bylaws for purposes of the amendment provisions of our bylaws.
Delaware Anti-Takeover Law
Section 203 of the DGCL provides that, subject to exceptions specified therein, a Delaware corporation may not engage in any “business combination,” including, among other things, certain mergers or consolidations with an “interested stockholder” for a three-year period following the time that such stockholder becomes an interested stockholder, unless:
•
prior to such time, the board of directors of the corporation approved either the business combination or the transaction which resulted in the stockholder becoming an interested stockholder;
•
upon consummation of the transaction that resulted in the stockholder becoming an “interested stockholder,” the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced (excluding specified shares); or
•
on or subsequent to such time, the business combination is approved by the board of directors of the corporation and authorized at an annual or special meeting of stockholders, and not by written consent, by the affirmative vote of holders of at least 662∕3% of the outstanding voting stock not owned by the interested stockholder.
Except as otherwise specified in Section 203, an “interested stockholder” is defined to include:
•
any person that is the owner of 15% or more of the outstanding voting stock of the corporation, or is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within three years immediately prior to the date of determination; and
•
the affiliates and associates of any such person.
Under some circumstances, Section 203 makes it more difficult for a person who is an interested stockholder to effect various business combinations for a three-year period.
Section 203 of the DGCL permits a Delaware corporation to elect not to be governed by the provisions of Section 203. Pursuant to our certificate of incorporation, we have expressly elected not to be governed by the provisions of Section 203 of the DGCL.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock and Series A Preferred Stock is Equiniti Trust Company, LLC.
Listing
Our common stock is listed on the NYSE under the symbol “AM.” The Series A Preferred Stock is not listed on any securities exchange.
SELLING STOCKHOLDERS
This prospectus covers the offering of up to 144,033,190 shares of our common stock by the selling stockholders identified below, which may be done from time to time.
In connection with our simplification transaction, on March 12, 2019, we entered into a Registration Rights Agreement, pursuant to which we agreed to register the resale of certain shares of common stock by the selling stockholders. Pursuant to the Registration Rights Agreement, we will pay all expenses relating to the registration and offering of the shares covered by this prospectus, except that the selling stockholders will pay any underwriting discounts or commissions. The term “selling stockholders” includes the stockholders listed in the table below and their permitted transferees and assignees or other successors.
We have a material relationship with each of the selling stockholders. The selling stockholders consist of Antero Resources and certain of our executive officers and directors.
No offer or sale under this prospectus may be made by a stockholder unless that holder is included in the table below, in a supplement to this prospectus or in an amendment to the related registration statement that has become effective. We may supplement or amend this prospectus to include additional selling stockholders, which may include the below listed stockholders’ permitted transferees and assignees or other successors.
The following table sets forth information relating to the selling stockholders as of February 7, 2025, based on information supplied to us by the selling stockholders on or prior to that date and information filed with the SEC. We have not sought to verify such information. The selling stockholders may hold or acquire at any time shares of our common stock in addition to the shares offered by this prospectus and may have acquired additional shares of our common stock since the date on which the information reflected herein was provided to us. Additionally, the selling stockholders may have sold or transferred some or all of their shares of our common stock in transactions exempt from the registration requirements of the Securities Act since such date. Other information about the selling stockholders may also change over time. The following table sets forth the maximum number of shares of our common stock that may be sold by the selling stockholders identified below under this prospectus. Because the selling stockholders may offer all or some of their shares of our common stock from time to time, we cannot estimate the number of shares of our common stock that will be held by the selling stockholders upon the termination of any particular offering by such selling stockholders. The selling stockholders are not obligated to sell any of the shares of common stock offered by this prospectus. The selling stockholders reserve the right to accept or reject, in whole or in part, any proposed sale of shares. The selling stockholders may also offer and sell less than the number of shares of common stock indicated. The selling stockholders are not making any representation that any shares of common stock covered by this prospectus will or will not be offered for sale.
| |
|
|
Shares of Common Stock
Beneficially Owned Prior
to the Offering(1)
|
|
|
Shares of
Common Stock
That May Be
Offered by this
Prospectus
|
|
|
Shares of Common Stock
Beneficially Owned After
the Offering
|
|
|
Name of Selling Stockholder
|
|
|
Number
|
|
|
Percentage(2)
|
|
|
Number
|
|
|
Percentage(2)
|
|
|
Antero Resources Corporation(3)
|
|
|
|
|
139,172,515 |
|
|
|
|
|
29% |
|
|
|
|
|
139,172,515 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Current Directors and Officers as a Group(4)
|
|
|
|
|
3,921,413 |
|
|
|
|
|
* |
|
|
|
|
|
3,921,413 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
|
Current Officers as a Group(5)
|
|
|
|
|
939,262 |
|
|
|
|
|
* |
|
|
|
|
|
939,262 |
|
|
|
|
|
— |
|
|
|
|
|
— |
|
|
*
Less than one percent.
(1)
Based on an aggregate of 478,606,442 shares of common stock outstanding as of February 7, 2025.
(2)
Assumes that the selling stockholders dispose of all the shares of common stock covered by this prospectus and do not acquire beneficial ownership of any additional shares.
(3)
Includes 107,000,001 shares of common stock owned by Antero Subsidiary Holdings LLC (“AR Sub”). Antero Resources owns 100% of the limited liability company interests in AR Sub.
(4)
Includes two persons who serve as directors and officers of the Company, and certain entities under their control.
(5)
Includes two persons who serve as officers of the Company.
PLAN OF DISTRIBUTION
All shares of common stock being offered under this prospectus are being offered on behalf of the selling stockholders. Sales of shares pursuant to this prospectus may be made on the NYSE, in the over-the-counter market or otherwise at prices and on terms then prevailing, at prices related to the then current market price or at negotiated prices that are other than prevailing market prices or related to the then current market prices (in each case as determined by the selling stockholders). Sales may be made directly or through agents designated from time to time, or through dealers or underwriters to be designated or in negotiated transactions.
The shares may be sold by any one or more of the following methods:
•
through a firm commitment or best efforts underwriting;
•
through a block trade (which may involve crosses) in which the selling stockholder’s broker or dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
•
through purchases by a broker or dealer as principal and resale by the broker or dealer for their account pursuant to this prospectus;
•
through exchange distributions and/or secondary distributions in accordance with the rules of the NYSE;
•
through ordinary brokerage transactions and transactions in which the broker solicits purchasers;
•
through privately negotiated transactions;
•
through the distribution of the common shares by any selling stockholders to its partners, members or stockholders;
•
through the writing of options, swaps or other derivatives (including put or call options), whether the options, swaps or derivatives are listed on an options exchange or otherwise;
•
through short sales;
•
“at the market” or through market makers or into an existing market for the shares; or
•
through any other method permitted by applicable law.
In addition, the selling stockholders may from time to time sell securities in compliance with Rule 144 under the Securities Act, if available, or pursuant to other available exemptions from the registration requirements under the Securities Act, rather than pursuant to this prospectus. In such event, the selling stockholders may be required by the securities laws of certain states to offer and sell the shares of common stock only through registered or licensed brokers or dealers.
Any selling agents, underwriters or broker-dealers may receive compensation in the form of underwriting discounts, concessions or commissions from the selling stockholders, from purchasers of shares for whom they act as agents or from both sources. The selling stockholders do not expect these discounts, concessions or commissions to exceed what is customary in the types of transactions involved. The selling stockholders will be responsible for any commissions, underwriting discounts or similar charges on the sale of shares under this prospectus.
The selling stockholders may pledge or grant a security interest in some or all of the shares of common stock they own and, if a selling stockholder defaults in the performance of its secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time pursuant to a prospectus or any amendment to such prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act, amending, if necessary, the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under such prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of such prospectus.
The selling stockholders and any broker-dealers, agents and underwriters that participate in the distribution of the shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection with the sales. Any commissions, and any profit on the resale of shares, received by the selling stockholders and any such broker-dealers, agents or underwriters may be deemed to be underwriting discounts and commissions. Any underwriters, brokers, dealers and agents who participate in any sale of the securities may also engage in transactions with, or perform services for, us or our affiliates in the ordinary course of their businesses. We may indemnify underwriters, brokers, dealers and agents against specific liabilities, including liabilities under the Securities Act.
The selling stockholders will be subject to applicable provisions of the Exchange Act, and the associated rules and regulations thereunder, including Regulation M, which provisions may affect the marketability of the shares.
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas. If certain legal matters in connection with an offering of the securities made by this prospectus and a related prospectus supplement are passed upon by counsel for the underwriters of such offering, that counsel will be named in the applicable prospectus supplement related to that offering.
EXPERTS
The consolidated financial statements of Antero Midstream Corporation as of December 31, 2023 and 2024, and for each of the years in the three-year period ended December 31, 2024, and management’s assessment of the effectiveness of internal control over financial reporting as of December 31, 2024 have been incorporated by reference herein in reliance upon the report of KPMG LLP, independent registered public accounting firm, incorporated by reference herein, and upon the authority of said firm as experts in accounting and auditing.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below are the expenses (other than underwriting discounts and commissions) expected to be incurred in connection with the offering of the securities registered hereby.
| |
SEC registration fee
|
|
|
|
$ |
*
|
|
|
| |
Printing and engraving expenses
|
|
|
|
|
**
|
|
|
| |
Accounting fees and expenses
|
|
|
|
|
**
|
|
|
| |
Legal fees and expenses
|
|
|
|
|
**
|
|
|
| |
Transfer agent and registrar fees
|
|
|
|
|
**
|
|
|
| |
Trustee fees and expenses
|
|
|
|
|
**
|
|
|
| |
Miscellaneous
|
|
|
|
|
**
|
|
|
| |
Total
|
|
|
|
$ |
**
|
|
|
*
With respect to the shares of common stock to be sold by the selling stockholders, in accordance with Rule 415(a)(6) under the Securities Act, this registration statement carries over, as of the date of filing of this registration statement, 144,033,190 shares of common stock previously registered under the registrant's registration statement on Form S-3 (File No. 333-263651) (which we refer to as the “Prior Registration Statement”), which was filed with the SEC and became automatically effective on March 17, 2022, which shares remain unsold under the Prior Registration Statement (which we refer to as the “Previously Registered Unsold Securities”). In connection with the registration of the offering and sale of the Previously Registered Unsold Securities under the Prior Registration Statement, the registrant previously paid the applicable registration fee (calculated at the filing fee rate in effect at the time of the filing of the Prior Registration Statement) (which we refer to as the “Previously Paid Registration Fee”), which will continue to be applied to the Previously Registered Unsold Securities. The registrant is offsetting any SEC registration fee that may be due under this registration statement by the amount of the Previously Paid Registration Fee relating to the Previously Registered Unsold Securities. Accordingly, no registration fee is due upon the filing of this registration statement.
**
These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this time.
Item 15. Indemnification of Directors and Officers.
Antero Midstream Corporation
The DGCL authorizes corporations to limit or eliminate the personal liability of directors and officers to corporations and their stockholders for monetary damages for breaches of the fiduciary duties of directors and officers. The DGCL does not permit exculpation for liability:
•
for breach of duty of loyalty;
•
for acts or omissions not in good faith or involving intentional misconduct or knowing violation of law;
•
under Section 174 of the DGCL (which deals generally with unlawful payments of dividends, stock repurchases and redemptions); and
•
for transactions from which the director or officer derived improper personal benefit.
Our certificate of incorporation eliminates the personal liability of directors for monetary damages for any breach of fiduciary duty, except to the extent such exemption is not permitted under the DGCL.
Our bylaws provide that we shall, to the fullest extent permitted by law, indemnify any person who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding by
reason of the fact such person is or was our director, officer or employee, or, while our director, officer or employee, is or was serving at our request as a director, officer, employee or agent of another entity, against all liability and loss suffered and expenses reasonably incurred. Our bylaws further provide that we shall advance expenses incurred in defending any such proceeding to any such indemnitees; provided, however, that, to the extent required by law, such advancement of expenses shall be made only upon receipt of an undertaking, by or on behalf of such indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such indemnitee is not entitled to be indemnified for such expenses under our bylaws or otherwise.
Any amendment to, or repeal of, these provisions will not eliminate or reduce the effect of these provisions in respect of any act, omission or claim that occurred or arose prior to that amendment or repeal. If the DGCL is amended to provide for further limitations on the personal liability of directors or officers of corporations, then the personal liability of our directors and officers will be further limited to the fullest extent permitted by the DGCL.
In addition, we entered into indemnification agreements with our current directors and officers containing provisions that are in some respects broader than the specific indemnification provisions contained in the DGCL. The indemnification agreements require us, among other things, to indemnify our directors against certain liabilities that may arise by reason of their status or service as directors and to advance their expenses incurred as a result of any proceeding against them as to which they could be indemnified. We also intend to enter into indemnification agreements with our future directors and officers.
We maintain liability insurance policies that indemnify our directors and officers against various liabilities, including certain liabilities under arising under the Securities Act and the Exchange Act, that may be incurred by them in their capacity as such.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling us pursuant to the foregoing provisions, we have been informed that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 16. Exhibits.
The following documents are filed as exhibits to this registration statement, including those exhibits incorporated herein by reference to a prior filing of Antero Midstream Corporation under the Securities Act or the Exchange Act as indicated in parentheses:
| |
Exhibit
Number
|
|
|
Exhibits
|
|
| |
1.1*
|
|
|
Form of Underwriting Agreement.
|
|
| |
3.1
|
|
|
Certificate of Conversion of Antero Midstream Corporation, dated March 12, 2019 (incorporated by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K (Commission File No. 001-38075) filed on March 12, 2019).
|
|
| |
3.2
|
|
|
Certificate of Incorporation of Antero Midstream Corporation, dated March 12, 2019 (incorporated by reference to Exhibit 3.3 to the Company’s Form 8-K (Commission File No. 001-38075) filed on March 12, 2019).
|
|
| |
3.3
|
|
|
Certificate of Amendment to Certificate of Incorporation of Antero Midstream Corporation, dated June 8, 2023 (incorporated by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K (Commission File No. 001-38075) filed on June 8, 2023).
|
|
| |
3.4
|
|
|
Amended and Restated Bylaws of Antero Midstream Corporation, dated February 14, 2023 (incorporated by reference to Exhibit 3.3 to the Company’s Annual Report on Form 10-K (Commission File No. 001-38075) filed on February 15, 2023).
|
|
| |
3.5
|
|
|
Certificate of Designation of Antero Midstream Corporation, dated March 12, 2019 (incorporated by reference to Exhibit 3.1 to the Company’s Form 8-K (Commission File No. 001-38075) filed on March 12, 2019).
|
|
*
To be filed by amendment or as an exhibit to a document that is incorporated by reference herein.
**
Filed herewith.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) do not apply if the registration statement is on Form S-3 and the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately before such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 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 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.
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Denver, State of Colorado, on February 12, 2025.
ANTERO MIDSTREAM CORPORATION
By:
/s/ BRENDAN E. KRUEGER
Brendan E. Krueger
Chief Financial Officer, Vice President — Finance and Treasurer
POWER OF ATTORNEY
Each person whose signature appears below appoints Paul M. Rady, Brendan E. Krueger and Michael N. Kennedy, and each of them, as his true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement and any Registration Statement (including any amendment thereto) for this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, as amended, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully to all intents and purposes as he might or would do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and the dates indicated.
| |
Name
|
|
|
Title
|
|
|
Date
|
|
| |
/s/ PAUL M. RADY
Paul M. Rady
|
|
|
Chairman of the Board, Director, President and Chief Executive Officer
(Principal Executive Officer)
|
|
|
February 12, 2025
|
|
| |
/s/ BRENDAN E. KRUEGER
Brendan E. Krueger
|
|
|
Chief Financial Officer, Vice President — Finance and Treasurer
(Principal Financial Officer)
|
|
|
February 12, 2025
|
|
| |
/s/ SHERI L. PEARCE
Sheri L. Pearce
|
|
|
Senior Vice President — Accounting
and Chief Accounting Officer
(Principal Accounting Officer)
|
|
|
February 12, 2025
|
|
| |
/s/ MICHAEL N. KENNEDY
Michael N. Kennedy
|
|
|
Director and Senior Vice President — Finance
|
|
|
February 12, 2025
|
|
| |
/s/ NANCY E. CHISHOLM
Nancy E. Chisholm
|
|
|
Director
|
|
|
February 12, 2025
|
|
| |
/s/ PETER A. DEA
Peter A. Dea
|
|
|
Director
|
|
|
February 12, 2025
|
|
| |
/s/ W. HOWARD KEENAN, JR.
W. Howard Keenan, Jr.
|
|
|
Director
|
|
|
February 12, 2025
|
|
| |
Name
|
|
|
Title
|
|
|
Date
|
|
|
| |
/s/ DAVID H. KEYTE
David H. Keyte
|
|
|
Director
|
|
|
February 12, 2025
|
|
|
| |
/s/ BROOKS J. KLIMLEY
Brooks J. Klimley
|
|
|
Director
|
|
|
February 12, 2025
|
|
|
| |
/s/ JANINE J. MCARDLE
Janine J. McArdle
|
|
|
Director
|
|
|
February 12, 2025
|
|
|
| |
/s/ JOHN C. MOLLENKOPF
John C. Mollenkopf
|
|
|
Director
|
|
|
February 12, 2025
|
|
|
| |
/s/ JEFFREY S. MUÑOZ
Jeffrey S. Muñoz
|
|
|
Director
|
|
|
February 12, 2025
|
|
|
|
|
Exhibit 4.2
ANTERO MIDSTREAM CORPORATION
to
COMPUTERSHARE TRUST COMPANY, N.A.
Trustee
INDENTURE
Dated as of [ ]
[ ], 20[ ]
SENIOR DEBT SECURITIES
ANTERO MIDSTREAM CORPORATION
Certain Sections of this Indenture relating to
Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939, as amended
| Trust Indenture Act Section |
|
Indenture Section |
| Section 310(a)(1) |
|
609 |
| (a)(2) |
|
609 |
| (a)(3) |
|
Not Applicable |
| (a)(4) |
|
Not Applicable |
| 608 |
|
|
| Section 311(a) |
|
613 |
| (b) |
|
613 |
| Section 312(a) |
|
701 |
| |
|
702 |
| 702 |
|
|
| (c) |
|
702 |
| Section 313(a) |
|
703 |
| (b) |
|
703 |
| (c) |
|
703 |
| (d) |
|
703 |
| Section 314(a) |
|
704 |
| (a)(4) |
|
101 |
| (b) |
|
Not Applicable |
| (c)(1) |
|
102 |
| (c)(2) |
|
102 |
| (c)(3) |
|
Not Applicable |
| (d) |
|
Not Applicable |
| (e) |
|
102 |
| Section 315(a) |
|
601 |
| (b) |
|
602 |
| (c) |
|
601 |
| (d) |
|
601 |
| (e) |
|
514 |
| Section 316(a) |
|
101 |
| (a)(1)(A) |
|
502 |
| |
|
512 |
| (a)(1)(B) |
|
513 |
| (a)(2) |
|
Not Applicable |
| (b) |
|
508 |
| (c) |
|
104 |
| Section 317(a)(1) |
|
503 |
| (a)(2) |
|
504 |
| (b) |
|
1003 |
| Section 318(a) |
|
107 |
Note: This reconciliation
and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Table of Contents
Page
| Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
6 |
| |
|
| Section 101 |
Definitions |
6 |
| Section 102 |
Compliance Certificates and Opinions |
12 |
| Section 103 |
Form of Documents Delivered to Trustee |
13 |
| Section 104 |
Acts of Holders; Record Dates |
13 |
| Section 105 |
Notices, Etc., to Trustee, Company |
16 |
| Section 106 |
Notice to Holders; Waiver |
16 |
| Section 107 |
Trust Indenture Act Matters |
17 |
| Section 108 |
Effect of Headings and Table of Contents |
17 |
| Section 109 |
Successors and Assigns |
17 |
| Section 110 |
Separability Clause |
17 |
| Section 111 |
Benefits of Indenture |
17 |
| Section 112 |
Governing Law |
17 |
| Section 113 |
Legal Holidays |
18 |
| Section 114 |
No Adverse Interpretation of Other Agreements |
18 |
| Section 115 |
No Personal Liability of Directors, Officers, Employees and Stockholders |
18 |
| Section 116 |
Language of Notices, Etc. |
18 |
| Section 117 |
Force Majeure |
18 |
| Section 118 |
Waiver of Jury Trial |
18 |
| Section 119 |
U.S.A. Patriot Act |
19 |
| Section 120 |
Electronic Signature |
19 |
| |
|
|
| Article II SECURITY FORMS |
19 |
| |
|
| Section 201 |
Forms Generally |
19 |
| Section 202 |
Form of Face of Security |
20 |
| Section 203 |
Form of Reverse of Security |
22 |
| Section 204 |
Form of Legend for Global Securities |
26 |
| Section 205 |
Form of Trustee’s Certificate of Authentication |
26 |
| |
|
|
| Article III THE SECURITIES |
27 |
| |
|
| Section 301 |
Amount Unlimited; Issuable in Series |
27 |
| Section 302 |
Denominations |
30 |
| Section 303 |
Execution, Authentication, Delivery and Dating |
30 |
| Section 304 |
Temporary Securities |
31 |
| Section 305 |
Registration, Registration of Transfer and Exchange |
31 |
| Section 306 |
Mutilated, Destroyed, Lost and Wrongfully Taken Securities |
34 |
| Section 307 |
Payment of Interest; Interest Rights Preserved |
35 |
| Section 308 |
Persons Deemed Owners |
36 |
| Section 309 |
Cancellation |
37 |
| Section 310 |
Computation of Interest |
37 |
| Section 311 |
CUSIP Numbers |
37 |
| Article IV SATISFACTION AND DISCHARGE |
37 |
| |
|
| Section 401 |
Satisfaction and Discharge of Indenture |
37 |
| Section 402 |
Application of Trust Money |
38 |
| |
|
|
| Article V REMEDIES |
39 |
| |
|
| Section 501 |
Events of Default |
39 |
| Section 502 |
Acceleration of Maturity; Rescission and Annulment |
40 |
| Section 503 |
Collection of Indebtedness and Suits for Enforcement by Trustee |
41 |
| Section 504 |
Trustee May File Proofs of Claim |
42 |
| Section 505 |
Trustee May Enforce Claims Without Possession of Securities |
42 |
| Section 506 |
Application of Money Collected |
43 |
| Section 507 |
Limitation on Suits |
43 |
| Section 508 |
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert |
44 |
| Section 509 |
Restoration of Rights and Remedies |
44 |
| Section 510 |
Rights and Remedies Cumulative |
44 |
| Section 511 |
Delay or Omission Not Waiver |
44 |
| Section 512 |
Control by Holders |
44 |
| Section 513 |
Waiver of Past Defaults |
45 |
| Section 514 |
Undertaking for Costs |
45 |
| Section 515 |
Waiver of Usury, Stay or Extension Laws |
45 |
| |
|
|
| Article VI THE TRUSTEE |
46 |
| |
|
| Section 601 |
Certain Duties and Responsibilities |
46 |
| Section 602 |
Notice of Defaults |
47 |
| Section 603 |
Certain Rights of Trustee |
47 |
| Section 604 |
Not Responsible for Recitals or Issuance of Securities |
49 |
| Section 605 |
May Hold Securities |
49 |
| Section 606 |
Money Held in Trust |
49 |
| Section 607 |
Compensation and Reimbursement |
49 |
| Section 608 |
Conflicting Interests |
50 |
| Section 609 |
Corporate Trustee Required; Eligibility |
50 |
| Section 610 |
Resignation and Removal; Appointment of Successor |
51 |
| Section 611 |
Acceptance of Appointment by Successor |
52 |
| Section 612 |
Merger, Conversion, Consolidation or Succession to Business |
53 |
| Section 613 |
Preferential Collection of Claims Against Company |
53 |
| Section 614 |
Appointment of Authenticating Agent |
53 |
| |
|
|
| Article VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
55 |
| |
|
| Section 701 |
Company to Furnish Trustee Names and Addresses of Holders |
55 |
| Section 702 |
Preservation of Information; Communications to Holders |
55 |
| Section 703 |
Reports by Trustee |
56 |
| Section 704 |
Reports by Company and Guarantors |
56 |
| Article VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
56 |
| |
|
| Section 801 |
Company May Consolidate, Etc., Only on Certain Terms |
56 |
| Section 802 |
Successor Substituted |
57 |
| |
|
|
| Article IX SUPPLEMENTAL INDENTURES |
57 |
| |
|
| Section 901 |
Supplemental Indentures Without Consent of Holders |
57 |
| Section 902 |
Supplemental Indentures With Consent of Holders |
59 |
| Section 903 |
Execution of Supplemental Indentures |
60 |
| Section 904 |
Effect of Supplemental Indentures |
60 |
| Section 905 |
Conformity with Trust Indenture Act |
60 |
| Section 906 |
Reference in Securities to Supplemental Indentures |
61 |
| |
|
|
| Article X COVENANTS |
61 |
| |
|
| Section 1001 |
Payment of Principal, Premium and Interest |
61 |
| Section 1002 |
Maintenance of Office or Agency |
61 |
| Section 1003 |
Money for Securities Payments to Be Held in Trust |
62 |
| Section 1004 |
Corporate Existence |
62 |
| Section 1005 |
Statement by Officers as to Default |
63 |
| Section 1006 |
Waiver of Certain Covenants |
63 |
| |
|
|
| Article XI REDEMPTION OF SECURITIES |
63 |
| |
|
| Section 1101 |
Applicability of Article |
63 |
| Section 1102 |
Election to Redeem; Notice to Trustee |
63 |
| Section 1103 |
Selection by Trustee of Securities to Be Redeemed |
64 |
| Section 1104 |
Notice of Redemption |
65 |
| Section 1105 |
Deposit of Redemption Price |
66 |
| Section 1106 |
Securities Payable on Redemption Date |
66 |
| Section 1107 |
Securities Redeemed in Part |
67 |
| Section 1108 |
No Limit on Repurchases |
67 |
| |
|
|
| Article XII SINKING FUNDS |
67 |
| |
|
| Section 1201 |
Applicability of Article |
67 |
| Section 1202 |
Satisfaction of Sinking Fund Payments with Securities |
67 |
| Section 1203 |
Redemption of Securities for Sinking Fund |
68 |
| |
|
|
| Article XIII DEFEASANCE AND COVENANT DEFEASANCE |
68 |
| |
|
| Section 1301 |
Company’s Option to Effect Defeasance or Covenant Defeasance |
68 |
| Section 1302 |
Defeasance and Discharge |
68 |
| Section 1303 |
Covenant Defeasance |
69 |
| Section 1304 |
Conditions to Defeasance or Covenant Defeasance |
69 |
| Section 1305 |
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions |
71 |
| Section 1306 |
Reinstatement |
71 |
INDENTURE,
dated as of ,
20 between Antero Midstream Corporation, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the “Company”), having its principal office at 1615 Wynkoop Street, Denver, Colorado
80208, and Computershare Trust Company, N.A., a national banking association duly organized and existing under the laws of the United
States of America, as Trustee (herein called the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make
this Indenture a valid agreement of the Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture;
(5) 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;
(6) when
used with respect to any Security, the words “convert,” “converted” and “conversion” are intended
to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance
with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these words are not
intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like
tenor pursuant to Sections 304, 305, 306, 906 or 1107 or another similar provision of this Indenture, unless the context otherwise requires;
and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated
in Section 301;
(7) unless
the context otherwise requires, any reference to “duly provided for” and other words of similar import with respect to any
amount or property required to be paid or delivered, as applicable, shall include, without limitation, having made such amount or property
available for payment or delivery;
(8) references
to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted
by the Commission from time to time;
(9) when
the words “includes” or “including” are used herein, they shall be deemed to be followed by the words “without
limitation;” and
(10) “or”
is not exclusive.
“Act,” when used
with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of
any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control
with, such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.
“Applicable Procedures”
of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable
to such matter at such time.
“Authenticating Agent”
means, when used with respect to Securities of any series, any Person authorized by the Trustee to act on behalf of the Trustee to authenticate
the Securities of such series.
“Board of Directors”
means any of (1) the board of directors of the Company, (2) any duly authorized committee of that board or (3) any officer
of the Company duly authorized by the board of directors of the Company to take a specified action.
“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. Where any provision of
this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Securities
and the forms and terms thereof), such action may be taken by any officer or employee of the Company authorized to take such action by
the Board of Directors as evidenced by a Board Resolution.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Code” means the
United States Internal Revenue Code of 1986, as amended.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the
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 at such time.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument 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”
or “Company Order” means a written request or order signed in the name of the Company by any two Officers of the Company.
“Corporate Trust Office”
means the designated office of the Trustee at which this Indenture is administered and which, at the date hereof, is located at [ ] or
at such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office
of any successor Trustee.
“corporation”
means a corporation, association, company (including a limited liability company), joint-stock company, business trust or other business
entity (other than a partnership).
“Covenant Defeasance”
has the meaning specified in Section 1303.
“Defaulted Interest”
has the meaning specified in Section 307.
“Defeasance” has
the meaning specified in Section 1302.
“Depositary” means,
with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for such Securities as contemplated by Section 301.
“DTC” has the
meaning specified in Section 104.
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date”
has the meaning specified in Section 104.
“GAAP” means generally
accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, the Public Company Accounting
Oversight Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect from time to time. All ratio computations based on GAAP contained in this Indenture will be computed in conformity
with GAAP.
“Global Security”
means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
“Holder” means
a Person in whose name a Security is, at the time of determination, registered in the Security Register.
“Indenture” means
this instrument as originally executed and 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, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of any particular series or specific Securities
within a series established as contemplated by Section 301.
“interest,” when
used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date,”
when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity,” when
used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default”
means a written notice of the kind specified in Section 501(4).
“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person (or, if
such Person is a partnership, the general partner thereof) or any other officer or officers of such Person (or such general partner) designated
in a writing by or pursuant to authority of the Board of Directors (if such Person is the Company) or the Guarantor’s Board of Directors
with respect to such Guarantor (if such Person is a Guarantor) and delivered to the Trustee from time to time.
“Officers’ Certificate”
means a certificate signed on behalf of the Company by at least two Officers of the Company, one of whom shall be the principal executive
officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements
of Section 102.
“Opinion of Counsel”
means a written opinion from legal counsel (who may be an employee of or counsel for the Company or any Affiliate thereof) that meets
the requirements of Section 102.
“Original Issue Discount
Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding,”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities
as to which Defeasance has been effected pursuant to Section 1302;
(4) Securities
which have been paid pursuant to Section 306 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; and
(5) Securities
as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been duly provided for), or as to
which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 301;
provided,
however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made
or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (a) the
principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof
which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (b) if,
as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security
which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (c) the
principal amount of a Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed
to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301,
of the principal amount of such Security (or, in the case of a Security described in Clause (a) or (b) above, of the amount
determined as provided in such Clause), and (d) Securities owned by the Company, or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether
the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action,
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.
“Paying Agent”
means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“Person” means
any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.
“Place of Payment,”
when used with respect to the Securities of any series and subject to Section 1002, means the place or places where the principal
of and any premium and interest on the Securities of that series are payable as contemplated by Section 301.
“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 306 in exchange for or
in lieu of a mutilated, destroyed, lost or wrongfully taken Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or wrongfully taken Security.
“Redemption Date,”
when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,”
when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Securities of any series, means the date specified for that purpose as contemplated
by Section 301.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee (or any successor division
of the Trustee), including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any
other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who at
the time shall be such officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject, and who, in each case, has direct responsibility
for the administration of this Indenture.
“Securities” has
the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Special Record Date”
for the payment of any Defaulted Interest, means a date fixed by the Company pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary,”
with respect to any Person, means any (1) corporation (other than a partnership) of which the outstanding capital stock having a
majority of the votes entitled to be cast in the election of directors, managers or trustees of such corporation under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or any other Person of which a majority of the voting interests under
ordinary circumstances is at the time, directly or indirectly, owned by such Person or (2) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means
the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
“Uniform Commercial
Code” means the Uniform Commercial Code in effect in the State of Delaware or the State of New York, as applicable, in each case
as amended from time to time.
“U.S. Government Obligation”
has the meaning specified in Section 1304.
“Vice President,”
when used with respect to the Company, means any executive vice president and any senior vice president, whether or not designated by
a number or a word or words added before or after the title “executive vice president” or “senior vice president.”
Section 102 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 such certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements
set forth in this Indenture.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103 Form of
Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representation
by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless
such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 104 Acts
of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted
by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or agents duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive
in favor of the Trustee, the Company, if made in the manner provided in this Section 104.
Without limiting the generality
of this Section 104, unless otherwise provided in or pursuant to this Indenture, (1) a Holder, including a Depositary or its
nominee that is a Holder of a Global Security, may give, make or take, by an agent or agents duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted in or pursuant to this Indenture to be given,
made or taken by Holders, and a Depositary or its nominee that is a Holder of a Global Security may duly appoint in writing as its agent
or agents members of, or participants in, such Depositary holding interests in such Global Security in the records of such Depositary;
and (2) with respect to any Global Security the Depositary for which is The Depository Trust Company (“DTC”), any consent
or other action given, made or taken by an “agent member” of DTC by electronic means in accordance with the Automated Tender
Offer Procedures system or other Applicable Procedures of, and pursuant to authorization by, DTC shall be deemed to constitute the “Act”
of the Holder of such Global Security, and such Act shall be deemed to have been delivered to the Company, and the Trustee upon the delivery
by DTC of an “agent’s message” or other notice of such consent or other action having been so given, made or taken in
accordance with the Applicable Procedures of DTC.
The fact and date of the execution
by any Person of any 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 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 which the Trustee
deems sufficient.
The ownership of Securities
shall be proved by the Security Register.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
With respect to Securities
of any series, the Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of such
series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may
set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving, making or taking of any notice,
declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to give, make or take the
relevant action, whether or not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph,
the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Sections 105
and 106.
The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving, making
or taking of (A) any Notice of Default, (B) any declaration of acceleration referred to in Section 502, (C) any request
to institute proceedings referred to in Section 507(2) or (D) any direction referred to in Section 512, in each case
with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities
of such series on such record date, and no other Holders, shall be entitled to give, make or take such notice, declaration, request or
direction, whether or not such Holders remain Holders after such record date; provided, however, that no such action shall
be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph,
the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth
in Sections 105 and 106.
With respect to any record
date set pursuant to this Section 104, the party hereto which sets such record date may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date to an earlier day as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing,
a Holder entitled hereunder to give, make or take any action hereunder with regard to any particular Security may do so, in person or
by an agent duly appointed in writing, with regard to all or any part of the principal amount of such Security.
Section 105 Notices,
Etc., to Trustee, Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by
the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or
filed in writing and delivered in Person, mailed by first class mail (registered or certified, return receipt requested), transmitted
by facsimile or sent by overnight courier guaranteeing next Business Day delivery to or with the Trustee addressed to it at its Corporate
Trust Office, Facsimile: [ ] or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in writing and delivered in Person, mailed by first class mail
(registered or certified, return receipt requested), transmitted by facsimile or sent by overnight courier guaranteeing next Business
Day delivery, to or with the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument,
Attention: Chief Financial Officer, Facsimile: (713) 568-4911 with a copy to Vinson & Elkins L.L.P., 1001 Fannin Street, Suite 2500,
Houston, Texas 77002, Facsimile: (713) 615-5725, Attention: Douglas E. McWilliams, or at any other address previously furnished in writing
to the Trustee by the Company.
All requests, demands, authorizations,
directions, notices, consents, waivers or Acts of Holders or other such documents made, given, furnished or filed with or to the Company
shall be deemed to have been duly made, given, furnished or filed: (A) at the time delivered by hand, if personally delivered; (B) five
calendar days after being deposited in the mail, postage prepaid, if mailed; (C) when receipt is acknowledged, if telecopied; and
(D) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next Business Day delivery.
Notices given by publication will be deemed given on the first date on which publication is made. Any notice or communication to the Trustee
shall be deemed delivered upon receipt by a Responsible Officer of the Trustee.
Section 106 Notice
to Holders; Waiver. Where this Indenture provides for notice or other communication to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if given in writing and mailed by first class mail (registered or certified,
return receipt requested) or sent by overnight air courier guaranteeing next Business Day delivery, to each Holder affected by such event,
at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice or other communication. Any notice or other communication shall also
be so mailed or sent to any Person described in Section 313(c) of the Trust Indenture Act, to the extent required by the Trust
Indenture Act. Failure to mail or send a notice or other communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice or other communication in any manner, such notice or other communication may be waived in writing
by the Person entitled to receive such notice or other communication, either before or after the event, and such waiver shall be the equivalent
of such notice or other communication. Waivers of notice or other communication 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. If the Company mails a notice or
communication to the Holders, it shall mail a copy to the Trustee at the same time.
In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice or other communication by mail,
then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Where this Indenture provides
for notice or other communication with respect to any event or otherwise to a Holder of a Global Security, such notice or other communication
shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not
later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice or other
communication.
Section 107 Trust
Indenture Act Matters. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is
required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be. Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
Section 108 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 109 Successors
and Assigns. All covenants and agreements in this Indenture and the Securities by the Company and the Trustee, except as otherwise
provided in Section 802, shall bind their respective successors and assigns, whether so expressed or not.
Section 110 Separability
Clause. In case any provision in this Indenture, or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits
of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture,
except as may otherwise be provided pursuant to Section 301 with respect to any Securities of a particular series or under this Indenture
with respect to such Securities.
Section 112 Governing
Law. This Indenture and the Securities and the rights and obligations of the parties hereto and thereto, including the interpretation,
construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the
State of New York.
Section 113 Legal
Holidays. In any case where any Interest Payment Date, Redemption Date or Maturity of any Security, or any date on which a Holder
has the right to convert his Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply
in lieu of this Section 113)) payment of interest or principal (and premium, if any), or conversion of such Security 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 or Redemption Date, or at the Maturity, or on such date for conversion, as the
case may be, and if payment is so made or such conversion occurs, no interest shall accrue for the period from and after such Interest
Payment Date, such Redemption Date, the Maturity, or such date for conversion, as the case may be.
Section 114 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or other agreement
of the Company or any Subsidiaries of the Company or of any other Person. Any such indenture, loan or other agreement may not be used
to interpret this Indenture.
Section 115 No
Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, will have any liability for any obligations of the Company, respectively, under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 116 Language
of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver, other action or Act provided 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.
Section 117 Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, (i) any act or provision
of any future law or regulation or governmental authority, (ii) strikes, (iii) work stoppages, (iv) accidents, (v) acts
of war or terrorism, (vi) civil or military disturbances, (vii) nuclear or natural catastrophes or acts of God, (viii) disease,
(ix) epidemic or pandemic, (x) quarantine, (xi) national emergency, (xii) interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services, (xiii) communications system failure, (xiv) malware or ransomware,
(xv) unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer systems, or (xvi) unavailability
of any securities clearing system; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 118 Waiver
of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE.
Section 119 U.S.A.
Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and
record information that identities each person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to
satisfy the requirements of the U.S.A. Patriot Act.
Section 120 Electronic
Signature. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
This Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the transactions contemplated
hereby shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf
of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature; or (iii) in
the case of this Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the transactions
contemplated hereby, other than any Securities, any electronic signature permitted by the federal Electronic Signatures in Global and
National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law,
including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”). Each electronic signature (except
in the case of any Securities) or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal
effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon,
and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature (except
in the case of any Securities), of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity
thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under
the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Article II
SECURITY FORMS
Section 201 Forms
Generally. As to each series of Securities, the Securities of such series shall be in substantially the form set forth in this Article,
or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, with
such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing
such Securities as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the
officers of the Company executing such Securities
Section 202 Form of
Face of Security.
[Insert any legend required by the
Internal Revenue Code and the regulations thereunder.]
CUSIP [ ]
No. $
ANTERO MIDSTREAM CORPORATION
ANTERO MIDSTREAM CORPORATION,
a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ,
or registered assigns, the principal sum of
Dollars on [if the Security is to bear
interest prior to Maturity, insert — , and to pay interest thereon from
(1) or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in each year, commencing ,
and at the Maturity thereof, at the rate of % per annum, until the principal hereof is paid
or made available for payment, provided that any premium, and any such installment of interest, which is overdue shall bear interest
at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), from the date such overdue amount is due until such amount is paid or duly provided for, and such interest on any overdue
amount shall be payable on demand](2). The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest so payable, but not punctually paid or duly provided for, will
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
(or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, 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 in any other lawful manner not inconsistent with the requirements of any securities exchange on
which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
[If the Security is
not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of
a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and
any overdue premium shall bear interest at the rate of [ ]% per annum (to the extent that the
payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for
payment. Interest on any overdue principal or premium shall be payable on demand. Any such interest on overdue principal or premium which
is not paid on demand shall bear interest at the rate of [ ]% per annum (to the extent that the
payment of such interest on interest shall be legally enforceable), from the date of such demand until the amount so demanded is paid
or made available for payment. Interest on any overdue interest shall be payable on demand.]
__________
(1) If
the Securities of the applicable series are to be sold “flat”, insert the date of original issuance of Securities of such
series. If the Securities of the applicable series are to be issued “with accrued interest”, insert the Interest Payment Date
for Securities of such series next preceding the date of original issuance of Securities of such series.
(2) To
remain in brackets and italicized in indenture as executed.
Payment of the principal of
(and premium, if any) and [if applicable, insert — any such] interest on this Security will be made at the office
or agency of the Company maintained for that purpose in the continental United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case
of any payment due at the Maturity of the principal thereof or any payment of interest becomes payable on a day other than an Interest
Payment Date; provided, however, that if this Security is not a Global Security, (1) payment of interest on an Interest
Payment Date will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register;
and all other payments will be made by check against surrender of this Security; (2) all payments by check will be made in next-day
funds (i.e., funds that become available on the day after the check is cashed); and (3) notwithstanding clauses (1) and (2) above,
with respect to any payment of any amount due on this Security, if this Security is in a denomination of at least $1,000,000 and the Holder
hereof at the time of surrender hereof or, in the case of any payment of interest on any Interest Payment Date, the Holder thereof on
the related Regular Record Date delivers a written request to the Paying Agent to make such payment by wire transfer at least five Business
Days before the date such payment becomes due, together with appropriate wire transfer instructions specifying an account at a bank in
New York, New York, the Company shall make such payment by wire transfer of immediately available funds to such account at such bank in
New York City, any such wire instructions, once properly given by a Holder as to this Security, remaining in effect as to such Holder
and this Security unless and until new instructions are given in the manner described above and provided further, that notwithstanding
anything in the foregoing to the contrary, if this Security is a Global Security, payment shall be made pursuant to the Applicable Procedures
of the Depositary as permitted in said Indenture.
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 signed manually or by facsimile by its duly authorized officers.
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ANTERO
MIDSTREAM CORPORATION, a Delaware corporation |
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Section 203 Form of
Reverse of Security. This Security is one of a duly authorized issue of senior securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of [Insert date of indenture] (herein called the “Indenture”,
which term shall have the meaning assigned to it in such instrument), among the Company and Computershare Trust Company, N.A., as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made
to the 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.
This Security is one of the series designated on the face hereof [if applicable, insert — limited in aggregate principal
amount to $ ].
This Security is the general,
unsecured, senior obligation of the Company and any other Person who shall become such in accordance with the Indenture (the “Guarantors”).
The Guarantee by each Guarantor is the general, unsecured, senior obligation of such Guarantor, subject to the release and discharge thereof
as provided in the Indenture].(4)
[If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 days’ nor more than 60 days’ notice,
at any time [if applicable, insert — on or after [ ],
20[ ]], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert — on or before [ ],[ ]%,
and if redeemed] during the 12-month period beginning [ ]
of the years indicated,
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and thereafter at a Redemption Price equal
to [ ]% of the principal amount, together in the case of any such redemption with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]](3)
[If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days’ notice by mail, (1) on
[ ] in any year commencing with the year [ ]
and ending with the year [ ] through operation
of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after [ ],
as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning
[ ] of the years indicated,
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Through Operation of the Sinking
Fund |
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Redemption Price For Redemption
Otherwise Than Through
Operation |
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of the Sinking Fund and thereafter] at a Redemption
Price equal to % of the principal amount, together in the case of any such redemption (whether
through operation of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities,
of record at the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.](3)
[If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior to [ ],
redeem any Securities of this series as contemplated by [if applicable, insert — clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than [ ]%
per annum.](3)
[If applicable, insert
— The sinking fund for this series provides for the redemption on [ ]
in each year beginning with the year [ ] and
ending with the year [ ] of [if applicable,
insert — not less than $[ ] (“mandatory
sinking fund”) and not more than] $[ ]
aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than
through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert
— mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in
which they become due.]](3)
[If the Security is
subject to redemption of any kind, insert — 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 will be issued in the name of the Holder hereof upon the cancellation
hereof.](3)
[If applicable, insert
— 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.](3)
[If the Security is
not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur
and be continuing, 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.](3)
[If the Security is
an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the amount. Upon payment (A) of the
amount of principal so declared due and payable and (B) of interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the
payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.](3)
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 to be affected under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount (including consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities) of all Securities at the time Outstanding to be affected (considered together as one class for this purpose and
such Securities to be affected potentially being Securities of the same or different series and, with respect to any series, potentially
comprising fewer than all the Securities of such series), except as may otherwise be provided pursuant to the Indenture for all or any
specific Securities of any series. The Indenture also contains provisions (i) permitting the Holders of a majority in principal amount
(including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Securities at
the time Outstanding to be affected under the Indenture (considered together as one class for this purpose and such affected Securities
potentially being Securities of the same or different series and, with respect to any particular series, potentially comprising fewer
than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with
certain provisions of the Indenture and (ii) permitting the Holders of a majority in principal amount (including waivers obtained
in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Securities at the time Outstanding of any
series to be affected under the Indenture (with each such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the Indenture with respect to such series and their consequences,
in the case of Clause (i) or (ii), except as may otherwise be provided pursuant to the Indenture for all or any specific Securities
of any series. 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 such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, 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 and offered the Trustee indemnity satisfactory to it, and 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, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. 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, will
be issued to the designated transferee or transferees.
The Securities of this series
are issuable only in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 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 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 shall 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.
[If this Security is
a Global Security, insert — This Security is a Global Security and is subject to the provisions of the Indenture relating to
Global Securities, including the limitations therein on transfers and exchanges of Global Securities.]
This Security and the Indenture
shall be governed by and construed in accordance with the law of the State of New York.
All terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 204 Form of
Legend for Global Securities. Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY 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 SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205 Form of
Trustee’s Certificate of Authentication. The Trustee’s certificates of authentication shall be in substantially the following
form:
This is one of the Securities
of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
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COMPUTERSHARE
TRUST COMPANY, N.A.,
As Trustee |
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By: |
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Authorized Signatory |
Article III
THE SECURITIES
Section 301 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 or pursuant to a Board Resolution, and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any
limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Sections 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the
Person to whom any interest on a Security of the series shall be payable, if other than 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;
(4) the
date or dates on which the principal of any Securities of the series is payable;
(5) the
rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable
on any Interest Payment Date;
(6) the
place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the manner in
which any payment may be made;
(7) the
period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election
by the Company to redeem the Securities shall be evidenced;
(8) the
obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities of
the series shall be issuable;
(10) if
the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if
other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America for any purpose, including for the purposes of making payment in
the currency of the United States of America and applying the definition of “Outstanding” in Section 101;
(12) if
the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies, composite currencies or currency units other than that or those in which such Securities are stated
to be payable, the currency, currencies, composite currency, composite currencies or currency units in which the principal of or any premium
or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if
other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if
the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the
Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner
in which such amount deemed to be the principal amount shall be determined);
(15) if
applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or both such
Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the establishment of other arrangements)
to satisfy the requirements of Section 1304(1) for defeasance of such Securities and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities shall be evidenced;
(16) if
applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 204, any addition to, elimination of or other change in the
circumstances set forth in Clause (2) of the penultimate paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the
name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges
or transfers of any such Global Security;
(17) any
addition to, elimination of or other change in the Events of Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(18) any
addition to, elimination of or other change in the covenants set forth in Article X which applies to Securities of the series;
(19) any
provisions necessary to permit or facilitate the issuance, payment or conversion of any Securities of the series that may be converted
into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in lieu of, any
payment of principal or other amount and whether at the option of the Company or otherwise;
(20) if
applicable, that Persons other than those specified in Section 111 shall have such benefits, rights, remedies and claims with respect
to any Securities of the series or under this Indenture with respect to such Securities, as and to the extent provided for such Securities;
(21) any
change in the actions permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities of the series,
including any such change that permits or requires any or all such actions to be taken by or on behalf of the Holders of any specific
Securities of the series rather than or in addition to the Holders of all Securities of the series;
(22) any
provisions for subordination of any Securities of the series to other indebtedness of the Company (including Securities of other series);
and
(23) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided pursuant to this Section 301 for any series, after issuance of Securities of such series,
such series may be reopened for issuances of additional Securities of that series.
The terms of any Security
of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section 301.
The matters referenced in any or all of Clauses (1) through (24) above may be established and set forth or determined as aforesaid
with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
If any of the terms of the
series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of the series.
Section 302 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified
as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 303 Execution,
Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, President or any Vice President of the Company (or any other officer of the Company designated in writing by or pursuant
to authority of the Board of Directors and delivered to the Trustee from time to time). The signature of any of these officers on the
Securities may be manual or facsimile.
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, and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more
Board Resolutions, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if
the form of such Securities has been established by or pursuant to Board Resolution, as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(2) if
the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
(3) that
when such Securities have been authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity principles and subject to any limitation
with respect to payments in currency other than U.S. dollars.
If such form or terms have
been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions
of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order, and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to
be issued.
Each Security shall be dated
the date of its authentication.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 309, 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 304 Temporary
Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of
any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the
same series, of any authorized denominations and of like tenor and aggregate principal amount. 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 and
tenor.
Section 305 Registration,
Registration of Transfer and Exchange. The Company shall cause to be kept at each office or agency of the Company designated as a
Place of Payment pursuant to the first paragraph of Section 1002 a register (the register, maintained in each such office or agency
of the Company designated as a Place of Payment, being herein sometimes collectively referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration
of transfer of any Security of a series at the 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 Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities, which the Holder
making the exchange is entitled to receive.
All Securities issued upon
any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be
made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 906, or 1107 not involving any transfer.
If the Securities of any series
(or of any series and specified tenor) are to be redeemed in whole or in part, the Company shall not be required (x) to issue, register
the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of selection of any such Securities for redemption under Section 1103
and ending at the close of business on the day of such selection (or during such period as otherwise specified pursuant to Section 301
for such Securities), or (y) to register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
The provisions of Clauses
(1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each
Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding
any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 301,
no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such
Depositary has notified the Company that it (i) is unwilling or unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, or (B) the Company has executed and delivered to the Trustee a
Company Order stating that such Global Security shall be exchanged in whole for Securities that are not Global Securities (in which case
such exchange shall promptly be effected by the Trustee). If the Company receives a notice of the kind specified in Clause (A) above
or has delivered a Company Order of the kind specified in Clause (B) above, it may, in its sole discretion, designate a successor
Depositary for such Global Security within 90 days after receiving such notice or delivery of such order, as the case may be. If the Company
designates a successor Depositary as aforesaid, such Global Security shall promptly be exchanged in whole for one or more other Global
Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor
Global Security or Global Securities and the provisions of Clauses (1), (2), (3) and (4) of this provision shall continue to
apply thereto.
(3) Subject
to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 301, any exchange
of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every
Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof.
Every Person who takes or
holds any beneficial interest in a Global Security agrees that:
(5) the
Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized representative of such
Person;
(6) such
Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those established
by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary;
(7) the
Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit distributions of principal
and interest on the Global Securities to, such Persons in accordance with the Applicable Procedures of the Depositary;
(8) none
of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests; and
(9) the
transferor of any Security shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply
with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045
of the Code. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information. In connection with any proposed exchange of a Security that is not a Global Security for a Global Security, the Company or
the Depositary shall be required to provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply
with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045
of the Code. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information.
Section 306 Mutilated,
Destroyed, Lost and Wrongfully Taken Securities. If (1) any mutilated Security is surrendered to the Trustee or (2) both
(A) there shall be delivered to the Company and the Trustee (i) a claim by a Holder as to the destruction, loss or wrongful
taking of any Security of such Holder and a request thereby for a new replacement Security of the same series, and (ii) such indemnity
bond as may be required by them to save each of them and any agent of either of them harmless and (B) such other reasonable requirements
as may be imposed by the Company as permitted by Section 8-405 of the Uniform Commercial Code have been satisfied, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a “protected purchaser” within the meaning
of Section 8-405 of the Uniform Commercial Code, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously Outstanding.
In case any such mutilated,
destroyed, lost or wrongfully taken 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 306, 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 306 in lieu of any destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or wrongfully taken 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 306
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 wrongfully taken Securities.
Section 307 Payment
of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 301 with respect to any Securities
of a series, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest (or, if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 5:00
P.M. New York City time on such date).
Any interest on any Security
of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest payable on any Securities of a series to the Persons in whose names such Securities
(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 of such Securities and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Company 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 Company shall promptly notify the Trustee of such Special Record Date and the Trustee, 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 given to each Holder
of such Securities in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). The Trustee shall have no duty whatsoever
to determine whether any Defaulted Interest is payable or the amount thereof.
(2) The
Company may make payment of any Defaulted Interest on any Securities of a series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Except as may otherwise be
provided in this Section 307 or as contemplated in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder
of such Security on the day such interest is paid.
Subject to the foregoing provisions
of this Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security
which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for)
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 such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security
which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable.
Notwithstanding the foregoing,
the terms of any Security that may be converted may provide that the provisions of the immediately preceding paragraph do not apply, or
apply with such additions, changes or omissions as may be provided thereby, to such Security.
Section 308 Persons
Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company and the Trustee and any agent of the
Company or the Trustee shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking
fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it in accordance with its customary procedures. 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. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 310 Computation
of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311 CUSIP
Numbers. The Company, in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee in writing of any change in “CUSIP” or “ISIN” numbers.
Article IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to the Securities
of any series (except as to any surviving rights of the Trustee, and of conversion, registration of transfer or exchange of any such Security
expressly provided for herein or in the terms of such Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(1) either
(A) all
such Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or wrongfully
taken and which have been replaced or paid as provided in Section 306 and (ii) Securities for the payment of which money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all
such Securities not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii),
or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for such
purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities;
(3) no
event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other
Securities (other than such an event or Event of Default with respect to such Securities resulting solely from the incurrence of indebtedness
or other borrowing of funds, or the grant of liens securing such indebtedness or other borrowing, all or a portion of which are to be
applied to such deposit) shall have occurred and be continuing at the time of such deposit;
(4) such
deposit shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company
is a party or by which it is bound; and
(5) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614, and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section 401 with respect to such Securities, the obligations of the Company
of such series under Section 1002 and the obligations of the Trustee under Section 402, Section 606 and the last paragraph
of Section 1003 with respect to such Securities shall survive such satisfaction and discharge.
Section 402 Application
of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant
to Section 401 with respect to Securities of any series shall be held in trust and applied by it, 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 Persons entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request, to
the extent originally deposited by the Company. The Company may direct by a Company Order the investment of any money deposited with the
Trustee pursuant to Section 401, without distinction between principal and income, in (1) United States Treasury Securities
with a maturity of one year or less or (2) a money market fund that invests solely in short term United States Treasury Securities
and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities or funds meeting the
criteria specified in Clause (1) or (2) of this sentence.
Article V
REMEDIES
Section 501 Events
of Default.
Except as may otherwise be
provided pursuant to Section 301 for all or any specific Securities of any series, “Event of Default,” wherever used
herein with respect to the Securities of that series, means any one of the following events (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body):
(1) default
in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default
in the payment of the principal of or any premium on any Security of that series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series and continuance of such default
for a period of 60 days; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for
a period of 90 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
(5) the
entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or other similar law or (B) a decree
or order adjudging the Company a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable Federal or State law, or appointing a custodian, receiver,
liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering
the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order
unstayed and in effect for a period of 90 consecutive days (provided that, if any Person becomes the successor to the Company pursuant
to Article VIII and such Person is a corporation, partnership or trust organized and validly existing under the law of a jurisdiction
outside the United States, each reference in this Clause (5) to an applicable Federal or State law of a particular kind shall be
deemed to refer to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor
to the Company hereunder and is so organized and existing); or
(6) the
commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action (provided that, if any Person becomes the successor to the
Company pursuant to Article VIII and such Person is a corporation, limited liability company, partnership, trust or other entity
organized and validly existing under the law of a jurisdiction outside the United States, each reference in this Clause (6) to an
applicable Federal or State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S.
jurisdiction, for as long as such Person is the successor to the Company hereunder and is so organized and existing); or
(7) any
other Event of Default provided with respect to Securities of that series in accordance with Section 301.
Section 502 Acceleration
of Maturity; Rescission and Annulment. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, if an Event of Default (other than an Event of Default specified in Section 501(5) or Section 501(6)) with
respect to Securities of that series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities
of that series (or, in the case of any Security of that series which specifies an amount to be due and payable thereon upon acceleration
of the Maturity thereof, such amount as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together
with any accrued and unpaid interest thereon, shall become immediately due and payable. Except as may otherwise be provided pursuant to
Section 301 for all or any specific Securities of any series, if an Event of Default specified in Section 501(5) or Section 501(6) with
respect to Securities of that series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in
the case of any Security of that series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
Except as may otherwise be
provided pursuant to Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration
with respect to Securities of that series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities
of that series, by written notice to the Company, and the Trustee, may rescind and annul such declaration and its consequences if
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all
overdue interest on all Securities of that series,
(B) the
principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities,
and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all
Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 503 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if
(1) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 60 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and
any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If 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 504 Trustee
May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other obligor upon the Securities,
their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. The Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607 out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a line on, and shall be paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise
No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505 Trustee
May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 506 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 any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all
amounts due the Trustee, its agents and attorneys hereunder;
SECOND: To the payment of
the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the
remainder, if any, to the Company, or to whomsoever may be lawfully entitled to receive the same as a court of competent jurisdiction
may direct.
Section 507 Limitation
on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the
Holders of not less than 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;
(3) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, losses, expenses and liabilities to be incurred
in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain or determine whether any action
or inaction disturbs or prejudices the rights of any Holder or seeks to obtain priority or preference over any Holder).
Section 508 Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert. 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 any premium
and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date), and, if the terms of such Security so provide, to convert such Security in accordance with
its terms, and to institute suit for the enforcement of any such payment and, if applicable, any such right to convert, and such rights
shall not be impaired without the consent of such Holder.
Section 509 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 510 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512 Control
by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such series, provided that
(1) the
Trustee may refuse to follow any direction that conflicts with any rule of law or with this Indenture or that the Trustee determines
is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not any such direction unduly prejudices the rights of such Holders);
(2) the
Trustee may require indemnity satisfactory to it being furnished prior to taking such action;
(3) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(4) subject
to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine
that the proceeding so directed would involve the Trustee in personal liability.
Section 513 Waiver
of Past Defaults. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
the Holders of not less than a majority in principal amount (including waivers obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities) of the Outstanding Securities of any series to be affected under this Indenture may on behalf of the
Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except
a default
(1) in
the payment of the principal of or any premium or interest on any Security of such series, or
(2) in
respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver with
respect to any series, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
with respect to such series for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon. A waiver of any past default and its consequences given by or on behalf of any Holder of Securities
in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such
purchase, tender or exchange.
Section 514 Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess costs, including reasonable attorneys’ fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 514 nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the
Trustee, or by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date) or, if applicable, in any suit for the enforcement of the right to convert any Security in accordance
with its terms.
Section 515 Waiver
of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Article VI
THE TRUSTEE
Section 601 Certain
Duties and Responsibilities.
(1) Except
during the continuance of an Event of Default,
(A) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(B) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision 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 to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(2) In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
(3) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(A) this
Subsection shall not be construed to limit the effect of the first paragraph of this Section 601;
(B) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(C) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 512,
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(D) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(4) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section 601.
(5) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. 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
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses, losses and
liabilities that might be incurred by it in compliance with such request or direction.
Section 602 Notice
of Defaults. If a default or Event of Default occurs and is continuing hereunder with respect to Securities of any series, and if
it is known to the Trustee as provided in Section 603(10), the Trustee shall send to the Holders of Securities of such series notice
of such default or Event of default within 90 days after the Trustee gains knowledge of the default or Event of Default unless such default
or Event of Default shall have been cured or waived before the giving of such notice. Except in the case of a default or Event of Default
in payment of principal of, premium or interest on Securities of any series, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities
of such series. For the purpose of this Section 602 and Section 1005, the term “default” means, with respect to
Securities of any series, any event which is, or after notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603 Certain
Rights of Trustee. Subject to the provisions of Section 601:
(1) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) 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) shall be entitled to receive and
may request and conclusively rely upon, and shall not be liable for any action it takes or omits to take in good faith in reliance upon,
an Officers’ Certificate or an Opinion of Counsel;
(4) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, losses, expenses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(7) 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 and shall not be responsible for the supervision of officers and employees of such agents or attorneys;
(8) the
Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded;
(9) the
Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(10) the
Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities and this Indenture;
(11) the
rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to
act hereunder;
(12) in
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;
(13) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(14) the
right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty; and
(15) under
no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
Section 604 Not
Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or in
any other document issued in connection with the sale of the Securities. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605 May Hold
Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606 Money
Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds and need not be held in an interest-bearing
account, in each case, except to the extent required by law or by any other provision of this Indenture. The Trustee (acting in any capacity
hereunder) shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the
Company.
Section 607 Compensation
and Reimbursement.
(1) The
Company shall pay to the Trustee (in each of its capacities hereunder) from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder in accordance with a written schedule provided by the Trustee to the Company. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable and customary disbursements, advances and reasonable out-of-pocket expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall include the reasonable and customary compensation, disbursements
and expenses of the Trustee’s agents and counsel.
(2) The
Company shall indemnify, defend, protect and hold the Trustee harmless (in its individual capacity and Trustee capacities) and its agents,
employees, officers and directors against any and all losses, liabilities, damages, costs or expenses incurred by it arising out of or
in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 607 and reasonable attorneys’ fee and expenses and court costs)
and defending itself against any claim (whether asserted by either of the Company or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense that
is the result of its negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable decision.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld. As security for the performance
of the obligations of the Company under this Section 607 the Trustee shall have a lien prior to the Securities of any series upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (and premium,
if any) or interest on Securities of such series. Such lien shall survive satisfaction and discharge of this Indenture.
(3) Without
limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable
Federal or State bankruptcy, insolvency or other similar law.
(4) The
provisions of this Section 607 shall survive the termination of this Indenture and the satisfaction and discharge of this Indenture
or the earlier resignation or removal of the Trustee.
Section 608 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. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 609 Corporate
Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of
each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office in the continental United States of America. If any such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series
shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610 Resignation
and Removal; Appointment of Successor. 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 611.
The Trustee may resign at
any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 60 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed
upon 30 days’ prior written notice with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of a notice
of removal pursuant to this paragraph, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(1) the
Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by
a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder 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.
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 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) and shall comply with the applicable requirements of Section 611. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such 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 in accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder 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 the Securities of such series.
The Company shall give notice
of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. 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 611 Acceptance
of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder. In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
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 612 Merger,
Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
Section 613 Preferential
Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment
of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to any series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate the Securities of such Series issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial redemption or pursuant to Section 306, and Securities of such
series so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities of such series
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 so appointed with respect to such series and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent so appointed with respect to such series. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 614.
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 614, without the execution or filing of any paper or any further act on the part of
the Trustee, the Company, the Authenticating Agent or such successor corporation.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent with respect to any series of Securities
which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of such series in the
manner provided in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested
with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614.
If an appointment is made
pursuant to this Section 614 with respect to Securities of any series, the Securities of such series may have endorsed thereon, in
addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities
of the series designated herein and referred to in the within-mentioned Indenture.
| |
COMPUTERSHARE TRUST COMPANY, N.A.,
As Trustee |
| |
|
| |
By |
[NAME OF AUTHENTICATING AGENT], |
| |
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As Authenticating Agent |
| |
|
| |
By: |
|
| |
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Authorized Signatory |
Article VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually,
not later than [ ] and [ ]
in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each
series as of the immediately preceding [ ] or
[ ] as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company, of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702 Preservation
of Information; Communications to Holders. 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 701 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 701 upon receipt of a new list so furnished.
The rights of Holders to communicate
with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities,
by receiving and holding the same, agrees with the Company and the Trustee that neither of the Company nor the Trustee nor any agent of
any 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 703 Reports
by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted no later than [ ]
and shall be dated as of [ ] in each calendar
year, commencing in 20[ ].
A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
Section 704 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, if any, at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually
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 actual or constructive notice of any information contained therein or determinable
from information contained therein, including the compliance by the Company with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers’ Certificates). The Company will be deemed to have furnished each report required above
to the Trustee and the Holders of the Securities if it has filed such report with the SEC using the EDGAR filing system or if such report
is otherwise publicly available. The Trustee shall have no obligation to determine whether or not such reports have been filed on the
EDGAR filing system.
Article VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company
May Consolidate, Etc., Only on Certain Terms. The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its properties and assets
to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
(1) in
case the Company shall consolidate with or merge into another Person or sell, convey, transfer or lease all or substantially all its properties
and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by
sale, conveyance or transfer, or which leases, all or substantially all the properties and assets of the Company shall be a corporation,
limited liability company, partnership or trust, shall be organized and validly existing under the laws of the United States, any state
thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed
and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance
with its terms;
(2) immediately
after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
sale, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied
with.
Section 802 Successor
Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any sale, conveyance,
transfer or lease of all or substantially all the properties and assets of the Company in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the Securities.
Article IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental
Indentures Without Consent of Holders. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, without the consent of any Holders, the Company, when authorized by 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 satisfactory to the Trustee, for any of the following
purposes:
(1) 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, as the case may be; or
(2) to
add to the covenants of the Company for the benefit of the Holders of all or any Securities of any series (and if such covenants are to
be for the benefit of less than all Securities of such series, stating that such covenants are expressly being included solely for the
benefit of such Securities within such series) or to surrender any right or power herein conferred upon the Company with regard to all
or any Securities of any series (and if any such surrender is to be made with regard to less than all Securities of such series, stating
that such surrender is expressly being made solely with regard to such Securities within such series); or
(3) to
add any additional Events of Default for the benefit of the Holders of all or any Securities of any series (and if such additional Events
of Default are to be for the benefit of less than all Securities of such series, stating that such additional Events of Default are expressly
being included solely for the benefit of such Securities within such series); or
(4) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to
add to, change or eliminate any of the provisions of this Indenture in respect of all or any Securities of any series (and if such addition,
change or elimination is to apply with respect to less than all Securities of such series, stating that it is expressly being made to
apply solely with respect to such Securities within such series), provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to
secure the Securities; or
(7) to
establish the form or terms of all or any Securities of any series as permitted by Sections 201 and 301; or
(8) 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, pursuant to the requirements of Section 611; or
(9) to
add to or change any of the provisions of this Indenture with respect to any Securities that by their terms may be converted into securities
or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to
conform the text of this Indenture or any Securities to any provision of the “Description of the Notes” (or comparable) section
in any offering memorandum, prospectus or prospectus supplement of the Company prepared from time to time after the date of this Indenture
with respect to the offer and sale of Securities of any series, to the extent that such provision was intended to be a verbatim recitation
of a provision of this Indenture, the Securities; which intention shall be established by an Officers’ Certificate; or
(11) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or 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 pursuant
to this Clause (12) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section 902 Supplemental
Indentures With Consent of Holders. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, with the consent of the Holders of a majority in principal amount (including consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities) of the Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different
series and, with respect to any series, potentially comprising fewer than all the Securities of such series), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by 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 or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby
(including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities),
(1) change
the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or permit the Company to redeem any Security if, absent such supplemental indenture, the Company
would not be permitted to do so, or change any Place of Payment where, or the coin or 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, on or after the Redemption Date), or
(2) if
any Security provides that the Holder may require the Company to repurchase or convert such Security, impair such Holder’s right
to require repurchase or conversion of such Security on the terms provided therein, or
(3) reduce
the percentage in principal amount of the Outstanding Securities of any one or more series (considered separately or together as one class,
as applicable, and whether comprising the same or different series or less than all the Securities of a series), the consent of whose
Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(4) modify
any of the provisions of this Section 902, Section 513 or Section 1006, 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 with respect
to changes in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular Securities or series of Securities, or which modifies the rights of the Holders of such Securities or series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of any other Securities
or of any other series, as applicable.
It shall not be necessary
for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof. A consent to any indenture supplemental hereto by or on behalf of any Holder
of Securities given in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered
invalid by such purchase, tender or exchange.
Section 903 Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligation
of the Company enforceable against it in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 904 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 905 Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 906 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 X
COVENANTS
Section 1001 Payment
of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly
and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the
Securities and this Indenture. With respect to physical Securities, if any, presentation is due at maturity.
Section 1002 Maintenance
of Office or Agency. The Company will 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 may be surrendered for conversion 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 will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or
agency 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 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 such purposes and may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for 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.
With respect to any Global
Security, and except as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office
of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration
of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any
such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security
shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 1003 Money
for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee 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 prior to 11:00 A.M., New York City time, on each due date
of the principal of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds
with a trustee pursuant to Section 1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will (1) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the
Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series,
upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect
of the Securities of that series.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to applicable escheat
laws, 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 any premium or interest 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 on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.
Section 1004 Corporate
Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory), licenses and franchises; provided, however, that
the Company will not be required to preserve any such right, license or franchise if it shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
Section 1005 Statement
by Officers as to Default. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers’ Certificate, stating that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture with respect to the Securities of each series Outstanding and further stating,
as to each such Officer signing such certificate, that to the best of such Officer’s actual knowledge, the Company has kept, observed,
performed and fulfilled its obligations under this Indenture with respect to Securities of such series and is not in default in the performance
and observance of any of the material terms, provisions and conditions of this Indenture with respect to Securities of such series, in
each case, so as not to result in any default or Event of Default with respect to Securities of such series (or, if a default or Event
of Default with respect to Securities of such series shall have occurred and be continuing, describing all such defaults or Events of
Default of which such Officer may have knowledge and what action the Company is taking or propose to take with respect thereto).
Section 1006 Waiver
of Certain Covenants. Except as otherwise provided pursuant to Section 301 for all or any Securities of any series, the Company
may, with respect to all or any Securities of any series, omit in any particular instance to comply with any term, provision or condition
set forth in Section 1004 or in any covenant provided pursuant to Sections 301(18), 901(2), 901(6) or 901(7) for the
benefit of the Holders of such series or in Article VIII if, before the time for such compliance, the Holders of a majority in principal
amount (including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of all Outstanding
Securities affected by such waiver (considered together as one class for this purpose and such affected Securities potentially being Securities
of the same or different series and, with respect to any particular series, potentially comprising fewer than all the Securities of such
series) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect. A waiver of compliance given by or on behalf of any Holder of Securities
in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such
purchase, tender or exchange.
Article XI
REDEMPTION OF SECURITIES
Section 1101 Applicability
of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
Section 1102 Election
to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be established in or pursuant to a Board
Resolution or in another manner specified as contemplated by Section 301 for such Securities. If the Company elects to redeem the
Securities pursuant to this Article XI, it shall notify the Trustee in writing at least 5 Business Days before the date of giving
the notice of redemption (unless a shorter notice shall be satisfactory to the Trustee) of the Redemption Date, of the principal amount
of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. Such notice shall be accompanied
by an Officer’s Certificate and an Opinion of Counsel from the Company to the effect that such redemption will comply with the conditions
herein. In the case of any redemption of Securities (1) prior to the expiration of any restriction on such redemption provided in
the terms of such Securities or elsewhere in this Indenture, or (2) pursuant to an election of the Company that is subject to a condition
specified in the terms of the Securities of the series to be redeemed, the Company shall furnish the Trustee with an Officers’ Certificate
evidencing compliance with such restriction or condition. Redemptions may be conditioned upon the occurrence of conditions precedent with
respect to the redemption.
Section 1103 Selection
by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities
to be redeemed shall be selected by the Trustee, from the Outstanding Securities of such series not previously called for redemption,
pro rata (and when the Securities are in the form of Global Securities, the Trustee shall select such Securities in accordance
with the Applicable Procedures of the Depositary), and which may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected by the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for
partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected,
the converted portion of such Security shall be deemed (so far as it may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection, subject to the Applicable Procedures of DTC.
The Trustee shall promptly
notify the Company and each Security Registrar in writing of the Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall
be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104 Notice
of Redemption. Notice of redemption shall be given in the manner provided in Section 106 not less than 30 days nor more than
60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for the relevant
Securities), to each Holder of Securities to be redeemed, at his address appearing in the Security Register, except that redemption notices
may be sent more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or
a satisfaction and discharge of this Indenture pursuant to Article IV or Article XIII hereof, respectively.
All notices of redemption
shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) if
less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the
place or places where each such Security is to be surrendered for payment of the Redemption Price,
(6) the
conditions precedent for the redemption, if any,
(7) if
such redemption is subject to satisfaction of one or more conditions precedent, that, in the Company’s discretion, the redemption
date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice
may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date or by the redemption
date so delayed,
(8) for
any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security to be
redeemed will terminate and the place or places where such Securities may be surrendered for conversion, and
(9) that
the redemption is for a sinking fund, if such is the case.
The Company shall provide
written notice of the delay of such redemption date or the rescission of such notice of redemption (and rescission and cancellation of
the redemption of the Notes) to the Trustee no later than 10:00 A.M. New York City time, (subject to the Applicable Procedures) on
the redemption date or the redemption date as so delayed. Upon receipt of such notice of the delay of such redemption date or the rescission
of such notice of redemption, such redemption date shall be automatically delayed or such notice of redemption shall be automatically
rescinded, as applicable, and the redemption of the Notes shall be automatically delayed or rescinded and cancelled, as applicable, as
provided in such notice.
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request at least two Business Days
prior to the date the Redemption Notice will be sent (unless a shorter notice shall be satisfactory to the Trustee), by the Trustee in
the name and at the expense of the Company; provided, however, that the Officers’ Certificate delivered to the Trustee
pursuant to Section 1102 hereof requests that the Trustee give such notice and sets forth the information to be stated in such notice
as required by this Section 1104.
Section 1105 Deposit
of Redemption Price. Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date, other than any Securities called for redemption on that date which
have been converted prior to the date of such deposit.
If any Security called for
redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption
of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided
in the last paragraph of Section 307 or in the terms of such Security) be paid to the Company upon Company Request or, if then held
by the Company, shall be discharged from such trust.
Section 1106 Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest or unless the conditions for the redemption have not been satisfied) such
Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107 Securities
Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company 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.
Section 1108 No
Limit on Repurchases. Nothing in this Indenture or the Securities shall prohibit or limit the right of the Company or any Affiliate
of the Company to repurchase Securities from time to time at any price in open market purchases or private transactions at negotiated
prices, by tender offer or otherwise, in each case without any notice to or consent by Holders. Any Securities purchased by the Company
or any Affiliate of the Company may, to the extent permitted by law and at the discretion of the Company, be held, resold or delivered
to the Trustee for cancellation. Any such Securities delivered to the Trustee for cancellation may not be resold and shall be disposed
of by the Trustee in accordance with its customary procedures.
Article XII
SINKING FUNDS
Section 1201 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any
sinking fund payment provided for by the terms of any Securities 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 is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided
for by the terms of such Securities.
Section 1202 Satisfaction
of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been converted in accordance with their terms
or 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, in each case in satisfaction of all or any part
of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities
as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption
Price, as specified in the Securities so to be redeemed (or at such other prices as may be specified for such Securities as contemplated
in Section 301), for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203 Redemption
of Securities for Sinking Fund. Not less than 45 days (or such shorter period as shall be satisfactory to the Trustee) prior to each
sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount
of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities
pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to 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 1103 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 1104. Such notice having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
Article XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Company’s
Option to Effect Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to Section 301(15), the Securities of
any series of Securities shall be subject to defeasance or covenant defeasance pursuant to such Section 1302 or Section 1303,
in accordance with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth
below in this Article. The Company may elect, at its option, at any time, to have Section 1302 or Section 1303 applied to any
Securities or any series of Securities so subject to defeasance or covenant defeasance. Any such election shall be evidenced by a Board
Resolution or in another manner specified as contemplated by Section 301 for such Securities.
Section 1302 Defeasance
and Discharge. Upon the Company’s exercise of its option (if any) to have this Section 1302 applied to any Securities or
any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations with respect to
such Securities as provided in this Section 1302 on and after the date the conditions set forth in Section 1304 are satisfied
(hereinafter called “Defeasance”). For this purpose, such Defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Securities and to have satisfied all their other respective 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), subject to the following which shall survive until otherwise terminated or discharged hereunder:
(1) the rights of Holders of such Securities to receive, solely from the trust fund described in Section 1304(1) and as
more fully set forth in such Section, payments in respect of the principal of and any premium and interest on such Securities when payments
are due, or, if applicable, to convert such Securities in accordance with their terms, (2) the obligations of the Company with respect
to such Securities under Sections 304, 305, 306, 1002 and 1003 and, if applicable, their obligations with respect to the conversion
of such Securities, (3) the rights, powers, trusts, duties and immunities of the Trustee hereunder and (4) this Article. Subject
to compliance with this Article, the Company may exercise its option (if any) to have this Section 1302 applied to any Securities
notwithstanding the prior exercise of its option (if any) to have Section 1303 applied to such Securities.
Section 1303 Covenant
Defeasance. Upon the Company’s exercise of its option (if any) to have this Section 1303 applied to any Securities or any
series of Securities, as the case may be, (1) the Company shall be released from its obligations under Section 1004 and any
covenants provided pursuant to Section 301(18), 901(2), 901(6) or 901(7) for the benefit of the Holders of such Securities
and (2) the occurrence of any event specified in Section 501(4) (with respect to Section 1004 and any such covenants
provided pursuant to Sections 301(18), 901(2), 901(6) or 901(7)) and 501(8) shall
be deemed not to be or result in an Event of Default, in each case with respect to such Securities as provided in this Section 1303
on and after the date the conditions set forth in Section 1304 are satisfied (hereinafter called “Covenant Defeasance”).
For this purpose, such Covenant Defeasance means that, with respect to such 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 specified Section (to the extent so specified
in the case of Section 501(4)), whether directly or indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein or in any other document, but the remainder of this
Indenture and such Securities thereof shall be unaffected thereby.
Section 1304 Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 1302 or Section 1303
to any Securities or any series of Securities, as the case may be:
(1) The
Company shall irrevocably have deposited or caused to be irrevocably deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits
of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) such other obligations or arrangements as may be specified as contemplated by Section 301
with respect to such Securities, or (D) a combination thereof, in each case sufficient (except in the case of clause (A), in the
opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm expressed
in a written certification thereof delivered to the Trustee) to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation”
means (i) any security which is (1) a direct obligation of the United States of America for the payment of which the full faith
and credit of the United States of America is pledged or (2) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (1) or (2), is not callable or redeemable at the option of the
issuer thereof, and (ii) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act)
as custodian with respect to any U.S. Government Obligation which is specified in Clause (i) above and held by such bank for the
account of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government
Obligation which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the
U.S. Government Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In
the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In
the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) The
Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No
event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other
Securities (other than such an event or Event of Default with respect to such Securities resulting solely from the incurrence of indebtedness
or other borrowing of funds, or the grant of liens securing such indebtedness or other borrowing, all or a portion of which are to be
applied to such deposit) shall have occurred and be continuing at the time of such deposit.
(6) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or
instrument (other than this Indenture insofar as such Securities are concerned) to which the Company is a party or by which it is bound.
(7) The
Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of such Securities over the other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company.
(8) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1305 Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last paragraph
of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred to collectively
as the “Trustee”) pursuant to Section 1304 in respect of any Securities 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 such Paying Agent
(including the Company acting as its own Paying Agent or any Subsidiary or Affiliate of the Company) 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 any premium and interest, but money
and U.S. Government Obligations so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant
to Section 1304 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 Outstanding Securities.
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 U.S.
Government Obligations held by it as provided in Section 1304 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by
reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the respective obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant
to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect
to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305
with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Delivery of an executed counterpart of this Indenture by facsimile or electronic transmission shall be
equally as effective as delivery of an original executed counterpart of this Indenture. Any party delivering an executed counterpart of
this Indenture by facsimile or electronic transmission also shall deliver an original executed counterpart of this Indenture, but failure
to deliver an original executed counterpart shall not affect the validity, enforceability and binding effect of this Indenture.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
ANTERO MIDSTREAM CORPORATION |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[Signature Page to
Indenture]
| |
COMPUTERSHARE TRUST COMPANY, N.A. |
| |
|
| |
By: |
|
| |
Name: |
|
| |
Title: |
|
[Signature Page to Indenture]
Exhibit 4.3
ANTERO MIDSTREAM CORPORATION
to
COMPUTERSHARE TRUST COMPANY, N.A.
Trustee
INDENTURE
Dated as of [ ]
[ ], 20[ ]
SUBORDINATED DEBT SECURITIES
ANTERO MIDSTREAM CORPORATION
Certain Sections of this Indenture relating to
Sections 310
through 318, inclusive, of the Trust Indenture Act of 1939, as amended
|
Trust Indenture
Act Section |
Indenture
Section |
| Section 310(a)(1) |
609 |
| (a)(2) |
609 |
| (a)(3) |
Not Applicable |
| (a)(4) |
Not Applicable |
| (b) |
608 |
| Section 311(a) |
613 |
| (b) |
613 |
| Section 312(a) |
701 |
| |
702 |
| (b) |
702 |
| (c) |
702 |
| Section 313(a) |
703 |
| (b) |
703 |
| (c) |
703 |
| (d) |
703 |
| Section 314(a) |
704 |
| (a)(4) |
101 |
| (b) |
Not Applicable |
| (c)(1) |
102 |
| (c)(2) |
102 |
| (c)(3) |
Not Applicable |
| (d) |
Not Applicable |
| (e) |
102 |
| Section 315(a) |
601 |
| (b) |
602 |
| (c) |
601 |
| (d) |
601 |
| (e) |
514 |
| Section 316(a) |
101 |
| (a)(1)(A) |
502 |
| |
512 |
| (a)(1)(B) |
513 |
| (a)(2) |
Not Applicable |
| (b) |
508 |
| (c) |
104 |
| Section 317(a)(1) |
503 |
| (a)(2) |
504 |
| (b) |
1003 |
| Section 318(a) |
107 |
Note: This reconciliation
and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Table of Contents
Page
| Article I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION |
|
7 |
| Section 101 |
|
Definitions |
|
7 |
| Section 102 |
|
Compliance Certificates and Opinions |
|
14 |
| Section 103 |
|
Form of Documents Delivered to Trustee |
|
15 |
| Section 104 |
|
Acts of Holders; Record Dates |
|
15 |
| Section 105 |
|
Notices, Etc., to Trustee, Company |
|
18 |
| Section 106 |
|
Notice to Holders; Waiver |
|
18 |
| Section 107 |
|
Trust Indenture Act Matters |
|
19 |
| Section 108 |
|
Effect of Headings and Table of Contents |
|
19 |
| Section 109 |
|
Successors and Assigns |
|
19 |
| Section 110 |
|
Separability Clause |
|
19 |
| Section 111 |
|
Benefits of Indenture |
|
19 |
| Section 112 |
|
Governing Law |
|
19 |
| Section 113 |
|
Legal Holidays |
|
20 |
| Section 114 |
|
No Adverse Interpretation of Other Agreements |
|
20 |
| Section 115 |
|
No Personal Liability of Directors, Officers, Employees and Stockholders |
|
20 |
| Section 116 |
|
Language of Notices, Etc. |
|
20 |
| Section 117 |
|
Force Majeure |
|
20 |
| Section 118 |
|
Waiver of Jury Trial |
|
21 |
| Section 119 |
|
U.S.A. Patriot Act |
|
21 |
| Section 120 |
|
Electronic Signature |
|
21 |
| Article II SECURITY FORMS |
|
21 |
| Section 201 |
|
Forms Generally |
|
21 |
| Section 202 |
|
Form of Face of Security |
|
22 |
| Section 203 |
|
Form of Reverse of Security |
|
24 |
| Section 204 |
|
Form of Legend for Global Securities |
|
28 |
| Section 205 |
|
Form of Trustee’s Certificate of Authentication |
|
28 |
| Article III THE SECURITIES |
|
29 |
| Section 301 |
|
Amount Unlimited; Issuable in Series |
|
29 |
| Section 302 |
|
Denominations |
|
32 |
| Section 303 |
|
Execution, Authentication, Delivery and Dating |
|
32 |
| Section 304 |
|
Temporary Securities |
|
33 |
| Section 305 |
|
Registration, Registration of Transfer and Exchange |
|
34 |
| Section 306 |
|
Mutilated, Destroyed, Lost and Wrongfully Taken Securities |
|
36 |
| Section 307 |
|
Payment of Interest; Interest Rights Preserved |
|
37 |
| Section 308 |
|
Persons Deemed Owners |
|
38 |
| Section 309 |
|
Cancellation |
|
39 |
| Section 310 |
|
Computation of Interest |
|
39 |
| Section 311 |
|
CUSIP Numbers |
|
39 |
| Article IV SATISFACTION AND DISCHARGE |
|
39 |
| Section 401 |
|
Satisfaction and Discharge of Indenture |
|
39 |
| Section 402 |
|
Application of Trust Money |
|
41 |
| Article V REMEDIES |
|
41 |
| Section 501 |
|
Events of Default |
|
41 |
| Section 502 |
|
Acceleration of Maturity; Rescission and Annulment |
|
43 |
| Section 503 |
|
Collection of Indebtedness and Suits for Enforcement by Trustee |
|
44 |
| Section 504 |
|
Trustee May File Proofs of Claim |
|
44 |
| Section 505 |
|
Trustee May Enforce Claims Without Possession of Securities |
|
45 |
| Section 506 |
|
Application of Money Collected |
|
45 |
| Section 507 |
|
Limitation on Suits |
|
45 |
| Section 508 |
|
Unconditional Right of Holders to Receive Principal, Premium and Interest and to Convert |
|
46 |
| Section 509 |
|
Restoration of Rights and Remedies |
|
46 |
| Section 510 |
|
Rights and Remedies Cumulative |
|
46 |
| Section 511 |
|
Delay or Omission Not Waiver |
|
46 |
| Section 512 |
|
Control by Holders |
|
47 |
| Section 513 |
|
Waiver of Past Defaults |
|
47 |
| Section 514 |
|
Undertaking for Costs |
|
47 |
| Section 515 |
|
Waiver of Usury, Stay or Extension Laws |
|
48 |
| Article VI THE TRUSTEE |
|
48 |
| Section 601 |
|
Certain Duties and Responsibilities |
|
48 |
| Section 602 |
|
Notice of Defaults |
|
49 |
| Section 603 |
|
Certain Rights of Trustee |
|
49 |
| Section 604 |
|
Not Responsible for Recitals or Issuance of Securities |
|
51 |
| Section 605 |
|
May Hold Securities |
|
51 |
| Section 606 |
|
Money Held in Trust |
|
51 |
| Section 607 |
|
Compensation and Reimbursement |
|
52 |
| Section 608 |
|
Conflicting Interests |
|
53 |
| Section 609 |
|
Corporate Trustee Required; Eligibility |
|
53 |
| Section 610 |
|
Resignation and Removal; Appointment of Successor |
|
53 |
| Section 611 |
|
Acceptance of Appointment by Successor |
|
55 |
| Section 612 |
|
Merger, Conversion, Consolidation or Succession to Business |
|
55 |
| Section 613 |
|
Preferential Collection of Claims Against Company |
|
56 |
| Section 614 |
|
Appointment of Authenticating Agent |
|
56 |
| Article VII HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY |
|
57 |
| Section 701 |
|
Company to Furnish Trustee Names and Addresses of Holders |
|
57 |
| Section 702 |
|
Preservation of Information; Communications to Holders |
|
57 |
| Section 703 |
|
Reports by Trustee |
|
58 |
| Section 704 |
|
Reports by Company |
|
58 |
| Article VIII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE |
|
59 |
| Section 801 |
|
Company May Consolidate, Etc., Only on Certain Terms |
|
59 |
| Section 802 |
|
Successor Substituted |
|
59 |
| Article IX SUPPLEMENTAL INDENTURES |
|
60 |
| Section 901 |
|
Supplemental Indentures Without Consent of Holders |
|
60 |
| Section 902 |
|
Supplemental Indentures With Consent of Holders |
|
61 |
| Section 903 |
|
Execution of Supplemental Indentures |
|
62 |
| Section 904 |
|
Effect of Supplemental Indentures |
|
63 |
| Section 905 |
|
Conformity with Trust Indenture Act |
|
63 |
| Section 906 |
|
Reference in Securities to Supplemental Indentures |
|
63 |
| Article X COVENANTS |
|
63 |
| Section 1001 |
|
Payment of Principal, Premium and Interest |
|
63 |
| Section 1002 |
|
Maintenance of Office or Agency |
|
63 |
| Section 1003 |
|
Money for Securities Payments to Be Held in Trust |
|
64 |
| Section 1004 |
|
Corporate Existence |
|
65 |
| Section 1005 |
|
Statement by Officers as to Default |
|
65 |
| Section 1006 |
|
Waiver of Certain Covenants |
|
65 |
| Article XI REDEMPTION OF SECURITIES |
|
66 |
| Section 1101 |
|
Applicability of Article |
|
66 |
| Section 1102 |
|
Election to Redeem; Notice to Trustee |
|
66 |
| Section 1103 |
|
Selection by Trustee of Securities to Be Redeemed |
|
66 |
| Section 1104 |
|
Notice of Redemption |
|
67 |
| Section 1105 |
|
Deposit of Redemption Price |
|
68 |
| Section 1106 |
|
Securities Payable on Redemption Date |
|
68 |
| Section 1107 |
|
Securities Redeemed in Part |
|
69 |
| Section 1108 |
|
No Limit on Repurchases |
|
69 |
| Article XII SINKING FUNDS |
|
69 |
| Section 1201 |
|
Applicability of Article |
|
69 |
| Section 1202 |
|
Satisfaction of Sinking Fund Payments with Securities |
|
70 |
| Section 1203 |
|
Redemption of Securities for Sinking Fund |
|
70 |
| Article XIII DEFEASANCE AND COVENANT DEFEASANCE |
|
70 |
| Section 1301 |
|
Company’s Option to Effect Defeasance or Covenant Defeasance |
|
70 |
| Section 1302 |
|
Defeasance and Discharge |
|
70 |
| Section 1303 |
|
Covenant Defeasance |
|
71 |
| Section 1304 |
|
Conditions to Defeasance or Covenant Defeasance |
|
71 |
| Section 1305 |
|
Deposited Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions |
|
73 |
| Section 1306 |
|
Reinstatement |
|
74 |
| Article XIV SUBORDINATION OF SECURITIES |
|
74 |
| Section 1401 |
|
Securities Subordinate to Senior Debt |
|
74 |
| Section 1402 |
|
Payment Over of Proceeds Upon Dissolution, Etc. |
|
74 |
| Section 1403 |
|
Prior Payment to Senior Debt Upon Acceleration of Securities |
|
75 |
| Section 1404 |
|
No Payment When Senior Debt in Default |
|
76 |
| Section 1405 |
|
Payment Permitted in Certain Situations |
|
77 |
| Section 1406 |
|
Subrogation to Rights of Holders of Senior Debt |
|
77 |
| Section 1407 |
|
Provisions Solely to Define Relative Rights |
|
78 |
| Section 1408 |
|
Trustee to Effectuate Subordination |
|
78 |
| Section 1409 |
|
No Waiver of Subordination Provisions |
|
78 |
| Section 1410 |
|
Notice to Trustee |
|
78 |
| Section 1411 |
|
Reliance on Judicial Order or Certificate of Liquidating Agent |
|
79 |
| Section 1412 |
|
Trustee Not Fiduciary For Holders of Senior Debt |
|
79 |
| Section 1413 |
|
Rights of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights |
|
79 |
| Section 1414 |
|
Article Applicable to Paying Agents |
|
80 |
INDENTURE, dated
as of , 20
between Antero Midstream Corporation, a corporation duly organized and existing under the laws of the State of Delaware (herein called
the “Company”), having its principal office at 1615 Wynkoop Street, Denver, Colorado 80208, and Computershare Trust Company,
N.A., a national banking association duly organized and existing under the laws of the United States of America, as Trustee (herein called
the “Trustee”).
RECITALS OF THE COMPANY
The Company has duly authorized
the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured debentures, notes or other
evidences of indebtedness (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make
this Indenture a valid agreement of the Company in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of
the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit
of all Holders of the Securities or of series thereof, as follows:
Article I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101 Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all
accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP;
(4) unless
the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section,
as the case may be, of this Indenture;
(5) 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;
(6) when
used with respect to any Security, the words “convert,” “converted” and “conversion” are intended
to refer to the right of the Holder or the Company to convert or exchange such Security into or for securities or other property in accordance
with such terms, if any, as may hereafter be specified for such Security as contemplated by Section 301, and these words are not
intended to refer to any right of the Holder or the Company to exchange such Security for other Securities of the same series and like
tenor pursuant to Sections 304, 305, 306, 906 or 1107 or another similar provision of this Indenture, unless the context otherwise requires;
and references herein to the terms of any Security that may be converted mean such terms as may be specified for such Security as contemplated
in Section 301;
(7) unless
the context otherwise requires, any reference to “duly provided for” and other words of similar import with respect to any
amount or property required to be paid or delivered, as applicable, shall include, without limitation, having made such amount or property
available for payment or delivery;
(8) references
to sections of or rules under the Securities Act shall be deemed to include substitute, replacement of successor sections or rules adopted
by the Commission from time to time;
(9) when
the words “includes” or “including” are used herein, they shall be deemed to be followed by the words “without
limitation;” and
(10) “or”
is not exclusive.
“Act,” when used
with respect to any Holder, has the meaning specified in Section 104.
“Affiliate” of
any specified Person means any other Person directly or indirectly controlling or controlled by, or under direct or indirect common control
with, such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person
means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to
the foregoing.
“Applicable Procedures”
of a Depositary means, with respect to any matter at any time, the policies and procedures of such Depositary, if any, that are applicable
to such matter at such time.
“Authenticating Agent”
means, when used with respect to Securities of any series, any Person authorized by the Trustee to act on behalf of the Trustee to authenticate
the Securities of such series.
“Board of Directors”
means any of (a) the board of directors of the Company, (b) any duly authorized committee of that board or (c) any officer
of the Company duly authorized by the board of directors of the Company to take a specified action.
“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. Where any provision of
this Indenture refers to action to be taken pursuant to a Board Resolution (including the establishment of any series of the Securities
and the forms and terms thereof), such action may be taken by any officer or employee of the Company authorized to take such action by
the Board of Directors as evidenced by a Board Resolution.
“Business Day,”
when used with respect to any Place of Payment, means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law or executive order to close.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of a limited liability company or similar entity, any membership or similar interests therein;
(3) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(4) in
the case of a partnership, partnership interests (whether general or limited); and
(5) any
other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
“Code” means the
United States Internal Revenue Code of 1986, as amended.
“Commission” means
the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if at any time after the
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 at such time.
“Company” means
the Person named as the “Company” in the first paragraph of this instrument 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”
or “Company Order” means a written request or order signed in the name of the Company by any two Officers of the Company.
“Corporate Trust Office”
means the designated office of the Trustee at which this Indenture is administered and which, at the date hereof, is located at [ ] or
at such other address as the Trustee may designate from time to time by notice to the Company, or the principal corporate trust office
of any successor Trustee.
“corporation”
means a corporation, association, company (including a limited liability company), joint-stock company, business trust or other business
entity (other than a partnership).
“Covenant Defeasance”
has the meaning specified in Section 1303.
“Defaulted Interest”
has the meaning specified in Section 307.
“Defeasance” has
the meaning specified in Section 1302.
“Depositary” means,
with respect to Securities of any series issuable in whole or in part in the form of one or more Global Securities, a clearing agency
registered under the Exchange Act that is designated to act as depositary for such Securities as contemplated by Section 301.
“DTC” has the
meaning specified in Section 104.
“Equity Interests”
means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible
into, or exchangeable for, Capital Stock).
“Event of Default”
has the meaning specified in Section 501.
“Exchange Act”
means the Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.
“Expiration Date”
has the meaning specified in Section 104.
“GAAP” means generally
accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute
of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board, the Public Company Accounting
Oversight Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession,
which are in effect from time to time. All ratio computations based on GAAP contained in this Indenture will be computed in conformity
with GAAP.
“Global Security”
means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 204 (or such
legend as may be specified as contemplated by Section 301 for such Securities).
“Holder” means
a Person in whose name a Security is, at the time of determination, registered in the Security Register.
“Indebtedness”
means, with respect to any Person, without duplication, any indebtedness of such Person, whether or not contingent: (a) in respect
of borrowed money; (b) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements
in respect thereof); (c) in respect of banker’s acceptances; (d) representing capital lease obligations; (e) representing
the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or
trade payable; or (f) representing any hedging obligation, if and to the extent any of the foregoing indebtedness (other than letters
of credit and hedging obligations) would appear as a liability upon a balance sheet of such Person prepared in accordance with GAAP. In
addition, the term “Indebtedness” includes (x) all indebtedness of any other Person, of the types described above in
Clauses (a) through (f), secured by a lien on any asset of such Person (whether or not such indebtedness is assumed by such Person),
and (y) to the extent not otherwise included, the guarantee by such Person of any indebtedness of any other Person of the types described
above in Clauses (a) through (f).
“Indenture” means
this instrument as originally executed and 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, including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a part of and govern this instrument and any such supplemental
indenture, respectively. The term “Indenture” shall also include the terms of any particular series or specific Securities
within a series established as contemplated by Section 301.
“interest,” when
used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable
after Maturity.
“Interest Payment Date,”
when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Maturity,” when
used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Notice of Default”
means a written notice of the kind specified in Section 501(4).
“Officer” means,
with respect to any Person, the Chairman of the Board, the Chief Executive Officer, the President, the Chief Operating Officer, the Chief
Financial Officer, the Treasurer, any Assistant Treasurer, the Controller, the Secretary or any Vice-President of such Person (or, if
such Person is a partnership, the general partner thereof) or any other officer or officers of such Person (or such general partner) designated
in a writing by or pursuant to authority of the Board of Directors (if such Person is the Company) and delivered to the Trustee from time
to time.
“Officers’ Certificate”
means a certificate signed on behalf of the Company by at least two Officers of the Company, one of whom shall be the principal executive
officer, the principal financial officer, the treasurer or the principal accounting officer of the Company, that meets the requirements
of Section 102.
“Opinion of Counsel”
means a written opinion from legal counsel (who may be an employee of or counsel for the Company or any Affiliate thereof) that meets
the requirements of Section 102.
“Original Issue Discount
Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding,”
when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(1) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities
for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other
than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for
the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities
as to which Defeasance has been effected pursuant to Section 1302;
(4) Securities
which have been paid pursuant to Section 306 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; and
(5) Securities
as to which any property deliverable upon conversion thereof has been delivered (or such delivery has been duly provided for), or as to
which any other particular conditions have been satisfied, in each case as may be provided for such Securities as contemplated in Section 301;
provided, however, that in determining
whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization,
direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount
Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such
date upon acceleration of the Maturity thereof to such date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to
be Outstanding shall be the amount as specified or determined as contemplated by Section 301, (C) the principal amount of a
Security denominated in one or more foreign currencies, composite currencies or currency units which shall be deemed to be Outstanding
shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 301, of the principal
amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided
in such Clause), and (D) Securities owned by the Company, or any other obligor upon the Securities or any Affiliate of the Company
or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, 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.
“Paying Agent”
means any Person authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“Person” means
any individual, corporation, partnership, joint venture, trust, unincorporated organization or government or any agency or political subdivision
thereof.
“Place of Payment,”
when used with respect to the Securities of any series and subject to Section 1002, means the place or places where the principal
of and any premium and interest on the Securities of that series are payable as contemplated by Section 301.
“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 306 in exchange for or
in lieu of a mutilated, destroyed, lost or wrongfully taken Security shall be deemed to evidence the same debt as the mutilated, destroyed,
lost or wrongfully taken Security.
“Redemption Date,”
when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price,”
when used with respect to any Security to be redeemed, means the price at which it is to be redeemed pursuant to this Indenture.
“Regular Record Date”
for the interest payable on any Interest Payment Date on the Securities of any series, means the date specified for that purpose as contemplated
by Section 301.
“Responsible Officer,”
when used with respect to the Trustee, means any officer within the corporate trust department of the Trustee (or any successor division
of the Trustee), including any vice president, assistant vice president, assistant secretary, assistant treasurer, trust officer or any
other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers who at
the time shall be such officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter
is referred because of his or her knowledge of and familiarity with the particular subject, and who, in each case, has direct responsibility
for the administration of this Indenture.
“Securities” has
the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under
this Indenture.
“Securities Act”
means the Securities Act of 1933 and any statute successor thereto, in each case as amended from time to time.
“Security Register”
and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Debt”
means, with respect to the Company: (a) [ ](1) and (b) any Indebtedness of the Company permitted under
the terms of this Indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is on a parity
in right of payment with or subordinated in right of payment to the Securities. Notwithstanding the foregoing, “Senior Debt”
will not include: (a) Equity Interests; (b) any liability for federal, state, local or other taxes due or owed by the Company;
(c) any Indebtedness of the Company to any Subsidiaries or Affiliates of the Company; (d) any trade payables; or (e) any
Indebtedness that is incurred in violation of this Indenture.
“Special Record Date”
for the payment of any Defaulted Interest, means a date fixed by the Company pursuant to Section 307.
“Stated Maturity,”
when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary,”
with respect to any Person, means any (i) corporation (other than a partnership) of which the outstanding Capital Stock having a
majority of the votes entitled to be cast in the election of directors, managers or trustees of such corporation under ordinary circumstances
shall at the time be owned, directly or indirectly, by such Person or any other Person of which a majority of the voting interests under
ordinary circumstances is at the time, directly or indirectly, owned by such Person or (ii) any partnership (a) the sole general
partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of
which are that Person or one or more Subsidiaries of that Person (or any combination thereof).
“Trust Indenture Act”
means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required
by any such amendment, the Trust Indenture Act of 1939 as so amended.
“Trustee” means
the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is
then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities
of any series shall mean the Trustee with respect to Securities of that series.
“Uniform Commercial
Code” means the Uniform Commercial Code in effect in the State of Delaware or the State of New York, as applicable, in each case
as amended from time to time.
“U.S. Government Obligation”
has the meaning specified in Section 1304.
“Vice President,”
when used with respect to the Company, means any executive vice president and any senior vice president, whether or not designated by
a number or a word or words added before or after the title “executive vice president” or “senior vice president.”
(1) Specify any Indebtedness of the Company
outstanding at the time the Indenture is executed and delivered that is intended to be “Senior Debt.”
Section 102 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 such certificates and opinions as may be required under the Trust Indenture Act.
Each such certificate or opinion shall be given in the form of an Officers’ Certificate, if to be given by an officer of the Company,
or an Opinion of Counsel, if to be given by counsel, and shall comply with the requirements of the Trust Indenture Act and any other requirements
set forth in this Indenture.
Every certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a
statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating
thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a
statement that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a
statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
Section 103 Form of
Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters
and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or
several documents.
Any certificate or opinion
of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations
by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representation
by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless
such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required
to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.
Section 104 Acts
of Holders; Record Dates. Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted
by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar
tenor signed by such Holders in person or by an agent or agents duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument
or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 601) conclusive
in favor of the Trustee, the Company, if made in the manner provided in this Section 104.
Without limiting the generality
of this Section 104, unless otherwise provided in or pursuant to this Indenture, (i) a Holder, including a Depositary or its
nominee that is a Holder of a Global Security, may give, make or take, by an agent or agents duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided or permitted in or pursuant to this Indenture to be given,
made or taken by Holders, and a Depositary or its nominee that is a Holder of a Global Security may duly appoint in writing as its agent
or agents members of, or participants in, such Depositary holding interests in such Global Security in the records of such Depositary;
and (ii) with respect to any Global Security the Depositary for which is The Depository Trust Company (“DTC”), any consent
or other action given, made or taken by an “agent member” of DTC by electronic means in accordance with the Automated Tender
Offer Procedures system or other Applicable Procedures of, and pursuant to authorization by, DTC shall be deemed to constitute the “Act”
of the Holder of such Global Security, and such Act shall be deemed to have been delivered to the Company, and the Trustee upon the delivery
by DTC of an “agent’s message” or other notice of such consent or other action having been so given, made or taken in
accordance with the Applicable Procedures of DTC.
The fact and date of the execution
by any Person of any 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 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 which the Trustee
deems sufficient.
The ownership of Securities
shall be proved by the Security Register.
Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and
the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, whether or not notation of such action
is made upon such Security.
With respect to Securities
of any series, the Company may set any day as a record date for the purpose of determining the Holders of Outstanding Securities of such
series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided
or permitted by this Indenture to be given, made or taken by Holders of Securities of such series, provided that the Company may
set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving, making or taking of any notice,
declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to give, make or take the
relevant action, whether or not such Holders remain Holders after such record date; provided, however, that no such action
shall be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the
record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph
shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of Outstanding Securities
of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this paragraph,
the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Sections 105
and 106.
The Trustee may set any day
as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving, making
or taking of (i) any Notice of Default, (ii) any declaration of acceleration referred to in Section 502, (iii) any
request to institute proceedings referred to in Section 507(2) or (iv) any direction referred to in Section 512, in
each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding
Securities of such series on such record date, and no other Holders, shall be entitled to give, make or take such notice, declaration,
request or direction, whether or not such Holders remain Holders after such record date; provided, however, that no such
action shall be effective hereunder unless given, made or taken on or prior to the applicable Expiration Date by Holders of the requisite
principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent
the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon
the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this
paragraph shall be construed to render ineffective any action given, made or taken by Holders of the requisite principal amount of Outstanding
Securities of the relevant series on the date such action is given, made or taken. Promptly after any record date is set pursuant to this
paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner
set forth in Sections 105 and 106.
With respect to any record
date set pursuant to this Section 104, the party hereto which sets such record date may designate any day as the “Expiration
Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall
be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities
of the relevant series in the manner set forth in Section 106, on or prior to the existing Expiration Date. If an Expiration Date
is not designated with respect to any record date set pursuant to this Section 104, the party hereto which set such record date shall
be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its
right to change the Expiration Date to an earlier day as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date
shall be later than the 180th day after the applicable record date.
Without limiting the foregoing,
a Holder entitled hereunder to give, make or take any action hereunder with regard to any particular Security may do so, in person or
by an agent duly appointed in writing, with regard to all or any part of the principal amount of such Security.
Section 105 Notices,
Etc., to Trustee, Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document
provided or permitted by this Indenture to be made upon, given or furnished to, or filed with, (1) the Trustee by any Holder or by
the Company shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if made, given, furnished or
filed in writing and delivered in Person, mailed by first class mail (registered or certified, return receipt requested), transmitted
by facsimile or sent by overnight courier guaranteeing next Business Day delivery to or with the Trustee addressed to it at its Corporate
Trust Office, Facsimile: [ ] or (2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if made, given, furnished or filed in writing and delivered in Person, mailed by first class mail
(registered or certified, return receipt requested), transmitted by facsimile or sent by overnight courier guaranteeing next Business
Day delivery, to or with the Company addressed to it at the address of its principal office specified in the first paragraph of this instrument,
Attention: Chief Financial Officer, Facsimile: (713) 568-4911 with a copy to Vinson & Elkins L.L.P., 1001 Fannin Street, Suite 2500,
Houston, Texas 77002, Facsimile: (713) 615-5725, Attention: Douglas E. McWilliams, or at any other address previously furnished in writing
to the Trustee by the Company.
All requests, demands, authorizations,
directions, notices, consents, waivers or Acts of Holders or other such documents made, given, furnished or filed with or to the Company
shall be deemed to have been duly made, given, furnished or filed: (i) at the time delivered by hand, if personally delivered; (ii) five
calendar days after being deposited in the mail, postage prepaid, if mailed; (iii) when receipt is acknowledged, if telecopied; and
(iv) the next Business Day after timely delivery to the courier, if sent by overnight air courier guaranteeing next Business Day
delivery. Notices given by publication will be deemed given on the first date on which publication is made. Any notice or communication
to the Trustee shall be deemed delivered upon receipt by a Responsible Officer of the Trustee.
Section 106 Notice
to Holders; Waiver. Where this Indenture provides for notice or other communication to Holders of any event, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if given in writing and mailed by first class mail (registered or certified,
return receipt requested) or sent by overnight air courier guaranteeing next Business Day delivery, to each Holder affected by such event,
at such Holder’s address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice or other communication. Any notice or other communication shall also
be so mailed or sent to any Person described in Section 313(c) of the Trust Indenture Act, to the extent required by the Trust
Indenture Act. Failure to mail or send a notice or other communication to a Holder or any defect in it shall not affect its sufficiency
with respect to other Holders.
If a notice or communication
is mailed or sent in the manner provided above within the time prescribed, it is duly given, whether or not the addressee receives it.
Where this Indenture provides for notice or other communication in any manner, such notice or other communication may be waived in writing
by the Person entitled to receive such notice or other communication, either before or after the event, and such waiver shall be the equivalent
of such notice or other communication. Waivers of notice or other communication 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. If the Company mails a notice or
communication to the Holders, it shall mail a copy to the Trustee at the same time.
In case by reason of the suspension
of regular mail service or by reason of any other cause it shall be impracticable to give such notice or other communication by mail,
then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Where this Indenture provides
for notice or other communication with respect to any event or otherwise to a Holder of a Global Security, such notice or other communication
shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its Applicable Procedures, not
later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice or other
communication.
Section 107 Trust
Indenture Act Matters. If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is
required under such Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture
modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed
to apply to this Indenture as so modified or to be excluded, as the case may be. Whenever this Indenture refers to a provision of the
Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
Section 108 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 109 Successors
and Assigns. All covenants and agreements in this Indenture and the Securities by the Company and the Trustee, except as otherwise
provided in Section 802, shall bind their respective successors and assigns, whether so expressed or not.
Section 110 Separability
Clause. In case any provision in this Indenture, or in the Securities shall be invalid, illegal or unenforceable, the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 111 Benefits
of Indenture. Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder, the holders of Senior Debt and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture, except as may otherwise be provided pursuant to Section 301 with respect to any Securities of a particular
series or under this Indenture with respect to such Securities.
Section 112 Governing
Law. This Indenture and the Securities and the rights and obligations of the parties hereto and thereto, including the interpretation,
construction, validity and enforceability thereof, shall be governed by and construed and interpreted in accordance with the law of the
State of New York.
Section 113 Legal
Holidays. In any case where any Interest Payment Date, Redemption Date or Maturity of any Security, or any date on which a Holder
has the right to convert his Security, shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Securities (other than a provision of any Security which specifically states that such provision shall apply
in lieu of this Section 113)) payment of interest or principal (and premium, if any), or conversion of such Security 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 or Redemption Date, or at the Maturity, or on such date for conversion, as the
case may be, and if payment is so made or such conversion occurs, no interest shall accrue for the period from and after such Interest
Payment Date, such Redemption Date, the Maturity, or such date for conversion, as the case may be.
Section 114 No
Adverse Interpretation of Other Agreements. This Indenture may not be used to interpret any other indenture, loan or other agreement
of the Company or any Subsidiaries of the Company or of any other Person. Any such indenture, loan or other agreement may not be used
to interpret this Indenture.
Section 115 No
Personal Liability of Directors, Officers, Employees and Stockholders. No past, present or future director, officer, employee, incorporator
or stockholder of the Company, as such, will have any liability for any obligations of the Company, respectively, under the Securities
or this Indenture or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Securities
by accepting a Security waives and releases all such liability. The waiver and release are part of the consideration for issuance of the
Securities. The waiver may not be effective to waive liabilities under the federal securities laws.
Section 116 Language
of Notices, Etc. Any request, demand, authorization, direction, notice, consent, waiver, other action or Act provided 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.
Section 117 Force
Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, (i) any act or provision
of any future law or regulation or governmental authority, (ii) strikes, (iii) work stoppages, (iv) accidents, (v) acts
of war or terrorism, (vi) civil or military disturbances, (vii) nuclear or natural catastrophes or acts of God, (viii) disease,
(ix) epidemic or pandemic, (x) quarantine, (xi) national emergency, (xii) interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services, (xiii) communications system failure, (xiv) malware or ransomware,
(xv) unavailability of the Federal Reserve Bank wire or telex system or other wire or other funds transfer systems, or (xvi) unavailability
of any securities clearing system; it being understood that the Trustee shall use reasonable efforts that are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances.
Section 118 Waiver
of Jury Trial. EACH OF THE COMPANY AND THE TRUSTEE HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS
INDENTURE.
Section 119 U.S.A.
Patriot Act. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like
all financial institutions and in order to help fight the funding of terrorism and money laundering, is required to obtain, verify and
record information that identities each person or legal entity that establishes a relationship or opens an account with the Trustee. The
parties to this Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to
satisfy the requirements of the U.S.A. Patriot Act.
Section 120 Electronic
Signature. The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission shall constitute
effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture for all
purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
This Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the transactions contemplated
hereby shall be valid, binding, and enforceable against a party only when executed and delivered by an authorized individual on behalf
of the party by means of (i) an original manual signature; (ii) a faxed, scanned, or photocopied manual signature; or (iii) in
the case of this Indenture and any certificate, agreement or other document to be signed in connection with this Indenture and the transactions
contemplated hereby, other than any Securities, any electronic signature permitted by the federal Electronic Signatures in Global and
National Commerce Act, state enactments of the Uniform Electronic Transactions Act, and/or any other relevant electronic signatures law,
including relevant provisions of the Uniform Commercial Code (collectively, “Signature Law”). Each electronic signature (except
in the case of any Securities) or faxed, scanned, or photocopied manual signature shall for all purposes have the same validity, legal
effect, and admissibility in evidence as an original manual signature. Each party hereto shall be entitled to conclusively rely upon,
and shall have no liability with respect to, any faxed, scanned, or photocopied manual signature, or other electronic signature (except
in the case of any Securities), of any party and shall have no duty to investigate, confirm or otherwise verify the validity or authenticity
thereof. For avoidance of doubt, original manual signatures shall be used for execution or indorsement of writings when required under
the Uniform Commercial Code or other Signature Law due to the character or intended character of the writings.
Article II
SECURITY FORMS
Section 201 Forms
Generally. As to each series of Securities, the Securities of such series shall be in substantially the form set forth in this Article,
or in such other form as shall be established by or pursuant to a Board Resolution or in one or more indentures supplemental hereto, with
such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with
the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the officers executing
such Securities as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant
to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of
the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 303 for the authentication
and delivery of such Securities.
The definitive Securities
shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the
officers of the Company executing such Securities
Section 202 Form of
Face of Security.
CUSIP [ ]
ANTERO MIDSTREAM CORPORATION
ANTERO MIDSTREAM CORPORATION,
a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”, which term
includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ,
or registered assigns, the principal sum of
Dollars on [if the Security is to bear
interest prior to Maturity, insert — , and to pay interest thereon from
(2) or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually on
and in each year, commencing ,
and at the Maturity thereof, at the rate of % per annum, until the principal hereof is paid
or made available for payment, provided that any premium, and any such installment of interest, which is overdue shall bear interest
at the rate of % per annum (to the extent that the payment of such interest shall be legally
enforceable), from the date such overdue amount is due until such amount is paid or duly provided for, and such interest on any overdue
amount shall be payable on demand](5). The interest so payable, and punctually paid or duly provided for, on any Interest Payment
Date will, as provided in such Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest, which shall be the
or (whether or not a Business Day), as the
case may be, next preceding such Interest Payment Date. Any such interest so payable, but not punctually paid or duly provided for, will
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
(or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, 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 in any other lawful manner not inconsistent with the requirements of any securities exchange on
which this Security may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.
[If the Security is
not to bear interest prior to Maturity, insert — The principal of this Security shall not bear interest except in the case of
a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and
any overdue premium shall bear interest at the rate of [ ]% per annum (to the extent that the payment of such interest shall be legally
enforceable), from the dates such amounts are due until they are paid or made available for payment. Interest on any overdue principal
or premium shall be payable on demand. Any such interest on overdue principal or premium which is not paid on demand shall bear interest
at the rate of [ ]% per annum (to the extent that the payment of such interest on interest shall
be legally enforceable), from the date of such demand until the amount so demanded is paid or made available for payment. Interest on
any overdue interest shall be payable on demand.](3)
(2) If
the Securities of the applicable series are to be sold “flat”, insert the date of original issuance of Securities of such
series. If the Securities of the applicable series are to be issued “with accrued interest”, insert the Interest Payment Date
for Securities of such series next preceding the date of original issuance of Securities of such series.
Payment of the principal of
(and premium, if any) and [if applicable, insert — any such] interest on this Security will be made at the office
or agency of the Company maintained for that purpose in the continental United States, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case
of any payment due at the Maturity of the principal thereof or any payment of interest becomes payable on a day other than an Interest
Payment Date; provided, however, that if this Security is not a Global Security, (i) payment of interest on an Interest
Payment Date will be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register;
and all other payments will be made by check against surrender of this Security; (ii) all payments by check will be made in next-day
funds (i.e., funds that become available on the day after the check is cashed); and (iii) notwithstanding clauses (i) and (ii) above,
with respect to any payment of any amount due on this Security, if this Security is in a denomination of at least $1,000,000 and the Holder
hereof at the time of surrender hereof or, in the case of any payment of interest on any Interest Payment Date, the Holder thereof on
the related Regular Record Date delivers a written request to the Paying Agent to make such payment by wire transfer at least five Business
Days before the date such payment becomes due, together with appropriate wire transfer instructions specifying an account at a bank in
New York, New York, the Company shall make such payment by wire transfer of immediately available funds to such account at such bank in
New York City, any such wire instructions, once properly given by a Holder as to this Security, remaining in effect as to such Holder
and this Security unless and until new instructions are given in the manner described above and provided further, that notwithstanding
anything in the foregoing to the contrary, if this Security is a Global Security, payment shall be made pursuant to the Applicable Procedures
of the Depositary as permitted in said Indenture.
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.
(3) To
remain in brackets and italicized in indenture as executed.
IN WITNESS WHEREOF, the Company
has caused this instrument to be duly signed manually or by facsimile by its duly authorized officers.
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ANTERO MIDSTREAM CORPORATION, a Delaware corporation |
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By: |
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Name: |
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Title: |
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Section 203 Form of
Reverse of Security. This Security is one of a duly authorized issue of senior securities of the Company (herein called the “Securities”),
issued and to be issued in one or more series under an Indenture, dated as of [Insert date of indenture] (herein called the “Indenture”,
which term shall have the meaning assigned to it in such instrument), among the Company and Computershare Trust Company, N.A., as Trustee
(herein called the “Trustee,” which term includes any successor trustee under the Indenture), and reference is hereby made
to the 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.
This Security is one of the series designated on the face hereof [if applicable, insert — limited in aggregate principal
amount to $ ].
This Security is the general,
unsecured, senior obligation of the Company.
[If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 days’ nor more than 60 days’ notice,
at any time [if applicable, insert — on or after [ ],
20[ ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal
amount): If redeemed [if applicable, insert — on or before [ ],[ ]%,
and if redeemed] during the 12-month period beginning [ ]
of the years indicated,
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Year |
Redemption
Price |
Year |
Redemption
Price |
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and thereafter at a Redemption Price equal
to [ ]% of the principal amount, together in the case of any such redemption with accrued interest
to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant Record Dates referred
to on the face hereof, all as provided in the Indenture.]](5)
[If applicable, insert
— The Securities of this series are subject to redemption upon not less than 30 nor more than 60 days’ notice by mail, (1) on
[ ] in any year commencing with the year [ ]
and ending with the year [ ] through operation
of the sinking fund for this series at the Redemption Prices for redemption through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below, and (2) at any time [if applicable, insert — on or after [ ],
as a whole or in part, at the election of the Company, at the Redemption Prices for redemption otherwise than through operation of the
sinking fund (expressed as percentages of the principal amount) set forth in the table below: If redeemed during the 12-month period beginning
[ ] of the years indicated,
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Year |
Redemption
Price For Redemption
Through Operation of the Sinking
Fund |
Redemption
Price For Redemption
Otherwise Than Through
Operation of the Sinking Fund |
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and thereafter] at a Redemption Price equal
to % of the principal amount, together in the case of any such redemption (whether through operation
of the sinking fund or otherwise) with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on
or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at
the close of business on the relevant Record Dates referred to on the face hereof, all as provided in the Indenture.](5)
[If applicable, insert
— Notwithstanding the foregoing, the Company may not, prior to [ ],
redeem any Securities of this series as contemplated by [if applicable, insert — clause (2) of] the preceding paragraph
as a part of, or in anticipation of, any refunding operation by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted financial practice) of less than [ ]%
per annum.](5)
[If applicable, insert
— The sinking fund for this series provides for the redemption on [ ]
in each year beginning with the year [ ] and
ending with the year [ ] of [if applicable,
insert — not less than $[ ] (“mandatory
sinking fund”) and not more than] $[ ]
aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than
through [if applicable, insert — mandatory] sinking fund payments may be credited against subsequent [if applicable, insert
— mandatory] sinking fund payments otherwise required to be made [if applicable, insert — , in the inverse order in
which they become due.]](5)
[If the Security is
subject to redemption of any kind, insert — 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 will be issued in the name of the Holder hereof upon the cancellation
hereof.](5)
The Indebtedness evidenced
by this Security is, to the extent provided in the Indenture, subordinate and subject in right of payment to the prior payment in full
of all Senior Debt, and this Security is issued subject to the provisions of the Indenture with respect thereto. Each Holder of this Security,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b) authorizes and directs the Trustee on his or
her behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided and (c) appoints the
Trustee his or her attorney-in-fact for any and all such purposes. Each Holder hereof, by his or her acceptance hereof, waives all notice
of the acceptance of the subordination provisions contained herein and in the Indenture by each holder of Senior Debt, whether now outstanding
or hereafter created, incurred, assumed or guaranteed, and waives reliance by each such holder upon said provisions.
[If applicable, insert
— 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.](5)
[If the Security is
not an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur
and be continuing, 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.](5)
[If the Security is
an Original Issue Discount Security, insert — If an Event of Default with respect to Securities of this series shall occur and
be continuing, an amount of principal of the Securities of this series may be declared due and payable in the manner and with the effect
provided in the Indenture. Such amount shall be equal to — insert formula for determining the amount. Upon payment (i) of the
amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case
to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the
payment of the principal of and premium and interest, if any, on the Securities of this series shall terminate.](5)
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 to be affected under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount (including consents obtained in connection with a purchase of, or tender offer or exchange
offer for, Securities) of all Securities at the time Outstanding to be affected (considered together as one class for this purpose and
such Securities to be affected potentially being Securities of the same or different series and, with respect to any series, potentially
comprising fewer than all the Securities of such series), except as may otherwise be provided pursuant to the Indenture for all or any
specific Securities of any series. The Indenture also contains provisions (i) permitting the Holders of a majority in principal amount
(including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Securities at
the time Outstanding to be affected under the Indenture (considered together as one class for this purpose and such affected Securities
potentially being Securities of the same or different series and, with respect to any particular series, potentially comprising fewer
than all the Securities of such series), on behalf of the Holders of all Securities so affected, to waive compliance by the Company with
certain provisions of the Indenture and (ii) permitting the Holders of a majority in principal amount (including waivers obtained
in connection with a purchase of, or tender offer or exchange offer for, Securities) of the Securities at the time Outstanding of any
series to be affected under the Indenture (with each such series considered separately for this purpose), on behalf of the Holders of
all Securities of such series, to waive certain past defaults under the Indenture with respect to such series and their consequences,
in the case of Clause (i) or (ii), except as may otherwise be provided pursuant to the Indenture for all or any specific Securities
of any series. 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 such Holder shall have previously
given the Trustee written notice of a continuing Event of Default with respect to the Securities of this series, 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 and offered the Trustee indemnity satisfactory to it, and 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, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request
and offer of indemnity. 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, will
be issued to the designated transferee or transferees.
The Securities of this series
are issuable only in registered form without coupons in minimum denominations of $2,000 and any integral multiple of $1,000 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 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 shall 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.
[If this Security is
a Global Security, insert — This Security is a Global Security and is subject to the provisions of the Indenture relating to
Global Securities, including the limitations therein on transfers and exchanges of Global Securities.]
This Security and the Indenture
shall be governed by and construed in accordance with the law of the State of New York.
All terms used in this Security
which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Section 204 Form of
Legend for Global Securities. Unless otherwise specified as contemplated by Section 301 for the Securities evidenced thereby,
every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY 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 SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
Section 205 Form of
Trustee’s Certificate of Authentication. The Trustee’s certificates of authentication shall be in substantially the following
form:
This is one of the Securities
of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
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COMPUTERSHARE TRUST COMPANY, N.A., |
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As Trustee |
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By: |
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Authorized Signatory |
Article III
THE SECURITIES
Section 301 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 or pursuant to a Board Resolution, and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers’ Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
(1) the
title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(2) any
limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the series pursuant to Sections 304, 305, 306, 906 or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the
Person to whom any interest on a Security of the series shall be payable, if other than 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;
(4) the
date or dates on which the principal of any Securities of the series is payable;
(5) the
rate or rates at which any Securities of the series shall bear interest, if any, the date or dates from which any such interest shall
accrue, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date for any such interest payable
on any Interest Payment Date;
(6) the
place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the manner in
which any payment may be made;
(7) the
period or periods within which, the price or prices at which and the terms and conditions upon which any Securities of the series may
be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election
by the Company to redeem the Securities shall be evidenced;
(8) the
obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions
or at the option of the Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which any Securities of
the series shall be issuable;
(10) if
the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
(11) if
other than the currency of the United States of America, the currency, currencies, composite currency, composite currencies or currency
units in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining
the equivalent thereof in the currency of the United States of America for any purpose, including for the purposes of making payment in
the currency of the United States of America and applying the definition of “Outstanding” in Section 101;
(12) if
the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies, composite currencies or currency units other than that or those in which such Securities are stated
to be payable, the currency, currencies, composite currency, composite currencies or currency units in which the principal of or any premium
or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions
upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if
other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to Section 502;
(14) if
the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any
purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the
Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner
in which such amount deemed to be the principal amount shall be determined);
(15) if
applicable, that the Securities of the series, in whole or any specified part, shall not be defeasible pursuant to Section 1302 or
Section 1303 or both such Sections, and, if such Securities may be defeased, in whole or in part, pursuant to either or both such
Sections, any provisions to permit a pledge of obligations other than U.S. Government Obligations (or the establishment of other arrangements)
to satisfy the requirements of Section 1304(1) for defeasance of such Securities and, if other than by a Board Resolution, the
manner in which any election by the Company to defease such Securities shall be evidenced;
(16) if
applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and,
in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such
Global Security in addition to or in lieu of that set forth in Section 204, any addition to, elimination of or other change in the
circumstances set forth in Clause (2) of the penultimate paragraph of Section 305 in which any such Global Security may be exchanged
in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the
name or names of Persons other than the Depositary for such Global Security or a nominee thereof and any other provisions governing exchanges
or transfers of any such Global Security;
(17) any
addition to, elimination of or other change in the Events of Default which applies to any Securities of the series and any change in the
right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 502;
(18) any
addition to, elimination of or other change in the covenants set forth in Article X which applies to Securities of the series;
(19) any
provisions necessary to permit or facilitate the issuance, payment or conversion of any Securities of the series that may be converted
into securities or other property other than Securities of the same series and of like tenor, whether in addition to, or in lieu of, any
payment of principal or other amount and whether at the option of the Company or otherwise;
(20) if
applicable, that Persons other than those specified in Section 111 shall have such benefits, rights, remedies and claims with respect
to any Securities of the series or under this Indenture with respect to such Securities, as and to the extent provided for such Securities;
(21) any
change in the actions permitted or required under this Indenture to be taken by or on behalf of the Holders of the Securities of the series,
including any such change that permits or requires any or all such actions to be taken by or on behalf of the Holders of any specific
Securities of the series rather than or in addition to the Holders of all Securities of the series;
(22) if
other than as provided in Article XIV, any provisions for subordination of any Securities of the series to other Indebtedness of
the Company (including Securities of other series); and
(23) any
other terms of the series (which terms shall not be inconsistent with the provisions of this Indenture, except as permitted by Section 901(5)).
All Securities of any one
series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to the Board
Resolution referred to above and (subject to Section 303) set forth, or determined in the manner provided, in the Officers’
Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at the
same time and, unless otherwise provided pursuant to this Section 301 for any series, after issuance of Securities of such series,
such series may be reopened for issuances of additional Securities of that series.
The terms of any Security
of a series may differ from the terms of other Securities of the same series, if and to the extent provided pursuant to this Section 301.
The matters referenced in any or all of Clauses (1) through (24) above may be established and set forth or determined as aforesaid
with respect to all or any specific Securities of a series (in each case to the extent permitted by the Trust Indenture Act).
If any of the terms of the
series are established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified
by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Officers’
Certificate setting forth the terms of the series.
The Securities shall be subordinated
in right of payment to Senior Debt as provided in Article XIV, or as set forth in an Officers’ Certificate or established in
one or more indentures supplemental hereto.
Section 302 Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified
as contemplated by Section 301. In the absence of any such specified denomination with respect to the Securities of any series, the
Securities of such series shall be issuable in minimum denominations of $2,000 and any integral multiple of $1,000 in excess thereof.
Section 303 Execution,
Authentication, Delivery and Dating. The Securities shall be executed on behalf of the Company by its Chairman of the Board, Chief
Executive Officer, President or any Vice President of the Company (or any other officer of the Company designated in writing by or pursuant
to authority of the Board of Directors and delivered to the Trustee from time to time). The signature of any of these officers on the
Securities may be manual or facsimile.
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, and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities. If the form or terms of the Securities of the series have been established by or pursuant to one or more
Board Resolutions, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall
be entitled to receive, and (subject to Section 601) shall be fully protected in relying upon, an Opinion of Counsel stating,
(1) if
the form of such Securities has been established by or pursuant to Board Resolution, as permitted by Section 201, that such form
has been established in conformity with the provisions of this Indenture;
(2) if
the terms of such Securities have been established by or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
(3) that
when such Securities have been authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, such Securities will constitute valid and legally binding obligations of the Company, enforceable
in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity principles and subject to any limitation
with respect to payments in currency other than U.S. dollars.
If such form or terms have
been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this
Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions
of Section 301 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, it shall
not be necessary to deliver the Officers’ Certificate otherwise required pursuant to Section 301 or the Company Order, and
Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such
series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to
be issued.
Each Security shall be dated
the date of its authentication.
No Security shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication
substantially in the form provided for herein executed by the Trustee by manual signature, and such certificate upon any Security shall
be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. 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 309, 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 304 Temporary
Securities. Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order, the Trustee
shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, mimeographed or otherwise produced,
in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other variations as the officers executing such Securities may determine, as evidenced
by their execution of such Securities.
If temporary Securities of
any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the
preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities
of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the
same series, of any authorized denominations and of like tenor and aggregate principal amount. 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 and
tenor.
Section 305 Registration,
Registration of Transfer and Exchange. The Company shall cause to be kept at each office or agency of the Company designated as a
Place of Payment pursuant to the first paragraph of Section 1002 a register (the register, maintained in each such office or agency
of the Company designated as a Place of Payment, being herein sometimes collectively referred to as the “Security Register”)
in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities
and transfers of Securities as herein provided.
Upon surrender for registration
of transfer of any Security of a series at the 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 Securities
of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder,
Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities, which the Holder
making the exchange is entitled to receive.
All Securities issued upon
any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled
to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or
surrendered for registration of transfer or for exchange shall (if so required by the Company or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
No service charge shall be
made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Sections 304, 906, or 1107 not involving any transfer.
If the Securities of any series
(or of any series and specified tenor) are to be redeemed in whole or in part, the Company shall not be required (A) to issue, register
the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period
beginning at the opening of business 15 days before the day of selection of any such Securities for redemption under Section 1103
and ending at the close of business on the day of such selection (or during such period as otherwise specified pursuant to Section 301
for such Securities), or (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
The Trustee shall have no
obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or
under applicable law with respect to any transfer of any interest in any Security other than to require delivery of such certificates
and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture,
and to examine the same to determine substantial compliance as to form with the express requirements hereof.
The provisions of Clauses
(1), (2), (3) and (4) below shall apply only to Global Securities:
(1) Each
Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding
any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 301,
no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in
part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such
Depositary has notified the Company that it (i) is unwilling or unable to continue as Depositary for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, or (B) the Company has executed and delivered to the Trustee a
Company Order stating that such Global Security shall be exchanged in whole for Securities that are not Global Securities (in which case
such exchange shall promptly be effected by the Trustee). If the Company receives a notice of the kind specified in Clause (A) above
or has delivered a Company Order of the kind specified in Clause (B) above, it may, in its sole discretion, designate a successor
Depositary for such Global Security within 90 days after receiving such notice or delivery of such order, as the case may be. If the Company
designates a successor Depositary as aforesaid, such Global Security shall promptly be exchanged in whole for one or more other Global
Securities registered in the name of the successor Depositary, whereupon such designated successor shall be the Depositary for such successor
Global Security or Global Securities and the provisions of Clauses (1), (2), (3) and (4) of this provision shall continue to
apply thereto.
(3) Subject
to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 301, any exchange
of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security
or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every
Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Section 305, Section 304, 306, 906 or 1107 or otherwise, shall be authenticated and delivered
in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary
for such Global Security or a nominee thereof.
Every Person who takes or
holds any beneficial interest in a Global Security agrees that:
(5) the
Company and the Trustee may deal with the Depositary as sole owner of the Global Security and as the authorized representative of such
Person;
(6) such
Person’s rights in the Global Security shall be exercised only through the Depositary and shall be limited to those established
by law and agreement between such Person and the Depositary and/or direct and indirect participants of the Depositary; and
(7) the
Depositary and its participants make book-entry transfers of beneficial ownership among, and receive and transmit distributions of principal
and interest on the Global Securities to, such Persons in accordance with the Applicable Procedures of the Depositary;
(8) none
of the Company, the Trustee nor any agent of the Company or the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Global Security or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests; and
(9) the
transferor of any Security shall provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply
with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045
of the Code. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information. In connection with any proposed exchange of a Security that is not a Global Security for a Global Security, the Company or
the Depositary shall be required to provide or cause to be provided to the Trustee all information necessary to allow the Trustee to comply
with any applicable tax reporting obligations, including without limitation any cost basis reporting obligations under Section 6045
of the Code. The Trustee may rely on information provided to it and shall have no responsibility to verify or ensure the accuracy of such
information.
Section 306 Mutilated,
Destroyed, Lost and Wrongfully Taken Securities. If (a) any mutilated Security is surrendered to the Trustee or (b) both
(i) there shall be delivered to the Company and the Trustee (A) a claim by a Holder as to the destruction, loss or wrongful
taking of any Security of such Holder and a request thereby for a new replacement Security of the same series, and (B) such indemnity
bond as may be required by them to save each of them and any agent of either of them harmless and (ii) such other reasonable requirements
as may be imposed by the Company as permitted by Section 8-405 of the Uniform Commercial Code have been satisfied, then, in the absence
of notice to the Company or the Trustee that such Security has been acquired by a “protected purchaser” within the meaning
of Section 8-405 of the Uniform Commercial Code, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such mutilated, destroyed, lost or wrongfully taken Security, a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously Outstanding.
In case any such mutilated,
destroyed, lost or wrongfully taken 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 306, 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 306 in lieu of any destroyed, lost or wrongfully taken Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed, lost or wrongfully taken 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 306
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 wrongfully taken Securities.
Section 307 Payment
of Interest; Interest Rights Preserved. Except as otherwise provided as contemplated by Section 301 with respect to any Securities
of a series, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest (or, if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 5:00
P.M. New York City time on such date).
Any interest on any Security
of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder,
and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The
Company may elect to make payment of any Defaulted Interest payable on any Securities of a series to the Persons in whose names such Securities
(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 of such Securities and the date of the proposed payment, and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held
in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause provided. Thereupon the Company 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 Company shall promptly notify the Trustee of such Special Record Date and the Trustee, 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 given to each Holder
of such Securities in the manner set forth in Section 106, not less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date therefor having been so mailed, such Defaulted Interest shall
be paid to the Persons in whose names such Securities (or their respective Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the following Clause (2). The Trustee shall have no duty whatsoever
to determine whether any Defaulted Interest is payable or the amount thereof.
(2) The
Company may make payment of any Defaulted Interest on any Securities of a series in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange,
if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause, such manner of payment shall be
deemed practicable by the Trustee.
Except as may otherwise be
provided in this Section 307 or as contemplated in Section 301 with respect to any Securities of a series, the Person to whom
interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder
of such Security on the day such interest is paid.
Subject to the foregoing provisions
of this Section 307, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu
of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
In the case of any Security
which is converted after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security
whose Maturity is prior to such Interest Payment Date), interest whose Stated Maturity is on such Interest Payment Date shall be payable
on such Interest Payment Date notwithstanding such conversion, and such interest (whether or not punctually paid or duly provided for)
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 such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security
which is converted, interest whose Stated Maturity is after the date of conversion of such Security shall not be payable.
Notwithstanding the foregoing,
the terms of any Security that may be converted may provide that the provisions of the immediately preceding paragraph do not apply, or
apply with such additions, changes or omissions as may be provided thereby, to such Security.
Section 308 Persons
Deemed Owners. Prior to due presentment of a Security for registration of transfer, the Company and the Trustee and any agent of the
Company or the Trustee shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose
of receiving payment of principal of and any premium and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the Company the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
Section 309 Cancellation.
All Securities surrendered for payment, redemption, registration of transfer or exchange or conversion or for credit against any sinking
fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it in accordance with customary procedures. 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. No Securities shall be authenticated
in lieu of or in exchange for any Securities cancelled as provided in this Section 309, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of in accordance with the Trustee’s customary procedures.
Section 310 Computation
of Interest. Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities
of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 311 CUSIP
Numbers. The Company, in issuing the Securities may use “CUSIP” and “ISIN” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” and “ISIN” numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Company shall
promptly notify the Trustee in writing of any change in “CUSIP” or “ISIN” numbers.
Article IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction
and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to the Securities
of any series (except as to any surviving rights of the Trustee, and of conversion, registration of transfer or exchange of any such Security
expressly provided for herein or in the terms of such Security), and the Trustee, at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture with respect to such Securities, when
(1) either
(A) all
such Securities theretofore authenticated and delivered (other than (i) Securities which have been destroyed, lost or wrongfully
taken and which have been replaced or paid as provided in Section 306 and (ii) Securities for the payment of which money has
theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged
from such trust, as provided in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all
such Securities not theretofore delivered to the Trustee for cancellation
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) are
to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company,
and the Company in the case of (i), (ii),
or (iii) above, has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust for such
purpose money in an amount sufficient to pay and discharge the entire Indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal and any premium and interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the case may be;
(2) the
Company has paid or caused to be paid all other sums payable hereunder by the Company with respect to such Securities;
(3) no
event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other
Securities (other than such an event or Event of Default with respect to such Securities resulting solely from the incurrence of Indebtedness
or other borrowing of funds, or the grant of liens securing such Indebtedness or other borrowing, all or a portion of which are to be
applied to such deposit) shall have occurred and be continuing at the time of such deposit;
(4) such
deposit shall not result in a breach or violation of, or constitute a default under, any other agreement or instrument to which the Company
is a party or by which it is bound; and
(5) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction
and discharge of this Indenture with respect to Securities of any series, the obligations of the Company to the Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 614, and, if money shall have been deposited with the Trustee
pursuant to subclause (B) of Clause (1) of this Section 401 with respect to such Securities, the obligations of the Company
of such series under Section 1002 and the obligations of the Trustee under Section 402, Section 606 and the last paragraph
of Section 1003 with respect to such Securities shall survive such satisfaction and discharge.
Section 402 Application
of Trust Money. Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant
to Section 401 with respect to Securities of any series shall be held in trust and applied by it, 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 Persons entitled thereto, of the principal and any premium and interest for whose
payment such money has been deposited with the Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted shall be returned to the Company upon Company Request, to
the extent originally deposited by the Company. The Company may direct by a Company Order the investment of any money deposited with the
Trustee pursuant to Section 401, without distinction between principal and income, in (1) United States Treasury Securities
with a maturity of one year or less or (2) a money market fund that invests solely in short term United States Treasury Securities
and from time to time the Company may direct the reinvestment of all or a portion of such money in other securities or funds meeting the
criteria specified in Clause (1) or (2) of this sentence.
Article V
REMEDIES
Section 501 Events
of Default.
Except as may otherwise be
provided pursuant to Section 301 for all or any specific Securities of any series, “Event of Default,” wherever used
herein with respect to the Securities of that series, means any one of the following events (whatever the reason for such Event of Default
and whether it shall be occasioned by the provisions of Article XIV, be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental
body):
(1) default
in the payment of any interest upon any Security of that series when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default
in the payment of the principal of or any premium on any Security of that series at its Maturity; or
(3) default
in the deposit of any sinking fund payment, when and as due by the terms of a Security of that series and continuance of such default
for a period of 60 days; or
(4) default
in the performance, or breach, of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty a default
in whose performance or whose breach is elsewhere in this Section 501 specifically dealt with or which has expressly been included
in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such default or breach for
a period of 90 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
(5) the entry by a court having jurisdiction in the premises of (A) a decree or
order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the
Company under any applicable Federal or State law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for
a period of 90 consecutive days (provided that, if any Person becomes the successor to the Company pursuant to Article VIII and
such Person is a corporation, partnership or trust organized and validly existing under the law of a jurisdiction outside the United
States, each reference in this Clause (5) to an applicable Federal or State law of a particular kind shall be deemed to refer
to such law or any applicable comparable law of such non-U.S. jurisdiction, for as long as such Person is the successor to the
Company hereunder and is so organized and existing); or
(6) the
commencement by the Company of a voluntary case or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of
a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its inability to pay its debts generally as they become due, or the
taking of corporate action by the Company in furtherance of any such action (provided that, if any Person becomes the successor to the
Company pursuant to Article VIII and such Person is a corporation, limited liability company, partnership, trust or other entity
organized and validly existing under the law of a jurisdiction outside the United States, each reference in this Clause (6) to an
applicable Federal or State law of a particular kind shall be deemed to refer to such law or any applicable comparable law of such non-U.S.
jurisdiction, for as long as such Person is the successor to the Company hereunder and is so organized and existing); or
(7) any
other Event of Default provided with respect to Securities of that series in accordance with Section 301.
Section 502 Acceleration
of Maturity; Rescission and Annulment. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, if an Event of Default (other than an Event of Default specified in Section 501(5) or Section 501(6)) with
respect to Securities of that series at the time Outstanding occurs and is continuing, then in every such case the Trustee or the Holders
of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal amount of all the Securities
of that series (or, in the case of any Security of that series which specifies an amount to be due and payable thereon upon acceleration
of the Maturity thereof, such amount as may be specified by the terms thereof) to be due and payable immediately, by a notice in writing
to the Company (and to the Trustee if given by Holders), and upon any such declaration such principal amount (or specified amount), together
with any accrued and unpaid interest thereon, shall become immediately due and payable. Except as may otherwise be provided pursuant to
Section 301 for all or any specific Securities of any series, if an Event of Default specified in Section 501(5) or Section 501(6) with
respect to Securities of that series at the time Outstanding occurs, the principal amount of all the Securities of that series (or, in
the case of any Security of that series which specifies an amount to be due and payable thereon upon acceleration of the Maturity thereof,
such amount as may be specified by the terms thereof), together with any accrued and unpaid interest thereon, shall automatically, and
without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
Except as may otherwise be
provided pursuant to Section 301 for all or any specific Securities of any series, at any time after such a declaration of acceleration
with respect to Securities of that series has been made and before a judgment or decree for payment of the money due has been obtained
by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities
of that series, by written notice to the Company, and the Trustee, may rescind and annul such declaration and its consequences if
(1) the
Company has paid or deposited with the Trustee a sum sufficient to pay
(A) all
overdue interest on all Securities of that series,
(B) the
principal of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed therefor in such Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities,
and
(D) all
sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel; and
(2) all
Events of Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect
any subsequent default or impair any right consequent thereon.
Section 503 Collection
of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if
(1) default
is made in the payment of any interest on any Security when such interest becomes due and payable and such default continues for a period
of 60 days, or
(2) default
is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee,
pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and
any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal
and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel.
If 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 504 Trustee
May File Proofs of Claim. In case of any judicial proceeding relative to the Company or any other obligor upon the Securities,
their property or their creditors, the Trustee shall be entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have claims of the Holders and the Trustee allowed in any such
proceeding. The Trustee shall be authorized to collect and receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any
such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 607.
To the extent that the payment of any such compensation, expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607 out of the estate in any such proceeding, shall be denied for any reason,
payment of the same shall be secured by a line on, and shall be paid out of, any and all distributions, dividends, money, securities and
other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization
or arrangement or otherwise.
No provision of this Indenture
shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote
in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may, on behalf of the
Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
Section 505 Trustee
May Enforce Claims Without Possession of Securities. All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and
any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has
been recovered.
Section 506 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 any premium or interest,
upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
FIRST: To the payment of all
amounts due the Trustee, its agents and attorneys hereunder;
SECOND: To the payment of
the amounts then due and unpaid for principal of and any premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable
on such Securities for principal and any premium and interest, respectively; and
THIRD: To the payment of the
remainder, if any, to the Company, or to whomsoever may be lawfully entitled to receive the same as a court of competent jurisdiction
may direct.
Section 507 Limitation
on Suits. No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect
to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such
Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2) the
Holders of not less than 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;
(3) such
Holder or Holders have offered to the Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the
Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding; and
(5) no
direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or
more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect,
disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other
of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit
of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain or determine whether any action
or inaction disturbs or prejudices the rights of any Holder or seeks to obtain priority or preference over any Holder).
Section 508 Unconditional
Right of Holders to Receive Principal, Premium and Interest and to Convert. 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 any premium
and (subject to Section 307) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the
case of redemption, on the Redemption Date), and, if the terms of such Security so provide, to convert such Security in accordance with
its terms, and to institute suit for the enforcement of any such payment and, if applicable, any such right to convert, and such rights
shall not be impaired without the consent of such Holder.
Section 509 Restoration
of Rights and Remedies. If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder,
then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored
severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall
continue as though no such proceeding had been instituted.
Section 510 Rights
and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or
wrongfully taken Securities in the last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity
or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511 Delay
or Omission Not Waiver. No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from time to time,
and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
Section 512 Control
by Holders. The Holders of a majority in principal amount of the Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred
on the Trustee, with respect to the Securities of such series, provided that
(1) the
Trustee may refuse to follow any direction that conflicts with any rule of law or with this Indenture or that the Trustee determines
is unduly prejudicial to the rights of other Holders (it being understood that the Trustee does not have an affirmative duty to ascertain
whether or not any such direction unduly prejudices the rights of such Holders);
(2) the
Trustee may require indemnity satisfactory to it being furnished prior to taking such action;
(3) the
Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(4) subject
to the provisions of Section 601, the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine
that the proceeding so directed would involve the Trustee in personal liability.
Section 513 Waiver
of Past Defaults. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities of any series,
the Holders of not less than a majority in principal amount (including waivers obtained in connection with a purchase of, or tender offer
or exchange offer for, Securities) of the Outstanding Securities of any series to be affected under this Indenture may on behalf of the
Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except
a default
(1) in
the payment of the principal of or any premium or interest on any Security of such series, or
(2) in
respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver with
respect to any series, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured,
with respect to such series for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or
impair any right consequent thereon. A waiver of any past default and its consequences given by or on behalf of any Holder of Securities
in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such
purchase, tender or exchange.
Section 514 Undertaking
for Costs. In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess costs, including reasonable attorneys’ fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 514 nor the Trust Indenture
Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the
Trustee, or by any Holder, or group of Holders, holding in the aggregate more than 10% in aggregate principal amount of the Outstanding
Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium,
if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption,
on or after the Redemption Date) or, if applicable, in any suit for the enforcement of the right to convert any Security in accordance
with its terms.
Section 515 Waiver
of Usury, Stay or Extension Laws. The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay
or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
Article VI
THE TRUSTEE
Section 601 Certain
Duties and Responsibilities.
(a) Except
during the continuance of an Event of Default,
(1) the
Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture, and no implied covenants
or obligations shall be read into this Indenture against the Trustee; and
(2) in
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture;
but in the case of any such certificates or opinions which by any provision 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 to the requirements of this Indenture (but
need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein).
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances
in the conduct of such person’s own affairs.
(c) No
provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(1) this
Subsection shall not be construed to limit the effect of the first paragraph of this Section 601;
(2) the
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the
Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the Holders of a majority in principal amount of the Outstanding Securities of any series, determined as provided in Section 512,
relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture with respect to the Securities of such series; and
(4) no
provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers.
(d) Whether
or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section 601.
(e) No
provision of this Indenture shall require the Trustee to expend or risk its own funds or incur any liability. 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
unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses, losses and
liabilities that might be incurred by it in compliance with such request or direction.
Section 602 Notice
of Defaults. If a default or Event of Default occurs and is continuing hereunder with respect to Securities of any series, and if
it is known to the Trustee as provided in Section 603(10), the Trustee shall send to the Holders of Securities of such series notice
of such default or Event of default within 90 days after the Trustee gains knowledge of the default or Event of Default unless such default
or Event of Default shall have been cured or waived before the giving of such notice. Except in the case of a default or Event of Default
in payment of principal of, premium or interest on Securities of any series, the Trustee may withhold the notice if and so long as a committee
of its Responsible Officers in good faith determines that withholding the notice is in the interests of the Holders of the Securities
of such series. For the purpose of this Section 602 and Section 1005, the term “default” means, with respect to
Securities of any series, any event which is, or after notice or lapse of time or both would become, an Event of Default with respect
to Securities of such series.
Section 603 Certain
Rights of Trustee. Subject to the provisions of Section 601:
(1) the
Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other
paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(2) any
request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors shall be sufficiently evidenced by a Board Resolution;
(3) 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) shall be entitled to receive and
may request and conclusively rely upon, and shall not be liable for any action it takes or omits to take in good faith in reliance upon,
an Officers’ Certificate or an Opinion of Counsel;
(4) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon;
(5) the
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses, losses and liabilities which might be incurred by it in compliance with such request or direction;
(6) the
Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, other evidence of Indebtedness or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the sole cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(7) 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 and shall not be responsible for the supervision of officers and employees of such agents or attorneys;
(8) the
Trustee may request that the Company deliver an Officers’ 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 Officers’ Certificate may be signed by any person
authorized to sign an Officers’ Certificate, including any person specified as so authorized in any such certificate previously
delivered and not superseded;
(9) the
Trustee shall not be liable for any action taken, suffered or omitted to be taken by it in good faith to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(10) the
Trustee shall not be deemed to have notice of any default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities and this Indenture;
(11) the
rights, privileges, protections, immunities and benefits given to the Trustee, including its rights to be indemnified, are extended to,
and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to
act hereunder;
(12) in
no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever
(including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;
(13) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(14) the
right of the Trustee to perform any discretionary act enumerated in this Indenture shall not be construed as a duty; and
(15) under
no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
Section 604 Not
Responsible for Recitals or Issuance of Securities. The recitals contained herein and in the Securities, except the Trustee’s
certificates of authentication, shall be taken as the statements of the Company, and the Trustee does not assume any responsibility for
their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities or in
any other document issued in connection with the sale of the Securities. The Trustee shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
Section 605 May Hold
Securities. The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in
its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 608 and 613, may otherwise
deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar
or such other agent.
Section 606 Money
Held in Trust. Money held by the Trustee in trust hereunder need not be segregated from other funds and need not be held in an interest-bearing
account, in each case, except to the extent required by law or by any other provision of this Indenture. The Trustee (acting in any capacity
hereunder) shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the
Company.
Section 607 Compensation
and Reimbursement.
(1) The
Company shall pay to the Trustee (in each of its capacities hereunder) from time to time reasonable compensation for its acceptance of
this Indenture and services hereunder in accordance with a written schedule provided by the Trustee to the Company. The Trustee’s
compensation shall not be limited by any law on compensation of a trustee of an express trust. The Company shall reimburse the Trustee
promptly upon request for all reasonable and customary disbursements, advances and reasonable out-of-pocket expenses incurred or made
by it in addition to the compensation for its services. Such expenses shall include the reasonable and customary compensation, disbursements
and expenses of the Trustee’s agents and counsel.
(2) The
Company shall indemnify, defend, protect and hold the Trustee harmless (in its individual capacity and Trustee capacities) and its agents,
employees, officers and directors against any and all losses, liabilities, damages, costs or expenses incurred by it arising out of or
in connection with the acceptance or administration of its duties under this Indenture, including the costs and expenses of enforcing
this Indenture against the Company (including this Section 607 and reasonable attorneys’ fee and expenses and court costs)
and defending itself against any claim (whether asserted by either of the Company or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder, except to the extent any such loss, liability or expense that
is the result of its negligence or willful misconduct as determined by a court of competent jurisdiction in a final, non-appealable decision.
The Trustee shall notify the Company promptly of any claim for which it may seek indemnity. Failure by the Trustee to so notify the Company
shall not relieve the Company of its obligations hereunder. The Company shall defend the claim and the Trustee shall cooperate in the
defense. The Trustee may have separate counsel and the Company shall pay the reasonable fees and expenses of such counsel. The Company
need not pay for any settlement made without its consent, which consent shall not be unreasonably withheld.
(3) As
security for the performance of the obligations of the Company under this Section 607 the Trustee shall have a lien prior to the
Securities of any series upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment
of principal of (and premium, if any) or interest on Securities of such series. Such lien shall survive satisfaction and discharge of
this Indenture or the earlier resignation or removal of the Trustee.
(4) Without
limiting any rights available to the Trustee under applicable law, when the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable
Federal or State bankruptcy, insolvency or other similar law.
(5) The
provisions of this Section 607 shall survive the termination of this Indenture and the satisfaction and discharge of this Indenture.
Section 608 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. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest
by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
Section 609 Corporate
Trustee Required; Eligibility. There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of
each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible
pursuant to the Trust Indenture Act to act as such, has a combined capital and surplus of at least $50,000,000 and has its Corporate Trust
Office in the continental United States of America. If any such Person publishes reports of condition at least annually, pursuant to law
or to the requirements of its supervising or examining authority, then for the purposes of this Section 609 and to the extent permitted
by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series
shall cease to be eligible in accordance with the provisions of this Section 609, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 610 Resignation
and Removal; Appointment of Successor. 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 611.
The Trustee may resign at
any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If the instrument of acceptance
by a successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such series.
The Trustee may be removed
upon 30 days’ prior written notice with respect to the Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee and to the Company. If the instrument of acceptance by a
successor Trustee required by Section 611 shall not have been delivered to the Trustee within 30 days after the giving of a notice
of removal pursuant to this paragraph, the Trustee being removed may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Securities of such series.
If at any time:
(1) the
Trustee shall fail to comply with Section 608 after written request therefor by the Company or by any Holder who has been a bona
fide Holder of a Security for at least six months, or
(2) the
Trustee shall cease to be eligible under Section 609 and shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the
Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by
a Board Resolution may remove the Trustee with respect to all Securities, or (B) subject to Section 514, any Holder 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.
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 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) and shall comply with the applicable requirements of Section 611. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such notice of removal, the Trustee being removed may petition,
at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities
of such 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 in accordance with the applicable requirements of Section 611, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment
in the manner required by Section 611, any Holder 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 the Securities of such series.
The Company shall give notice
of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 106. 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 611 Acceptance
of Appointment by Successor. In case of the appointment hereunder of a successor Trustee with respect to all Securities, such successor
Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment,
and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder. In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee
with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer
and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee
is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that
all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the
retiring Trustee is not retiring shall continue to be vested in the retiring Trustee, and (3) shall add to or change any of the provisions
of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust
and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates; but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor
Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee
all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
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 612 Merger,
Conversion, Consolidation or Succession to Business. Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party,
or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided such corporation shall be otherwise qualified and eligible under this Article, without the execution or filing
of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
Section 613 Preferential
Collection of Claims Against Company. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon
the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614 Appointment
of Authenticating Agent. The Trustee may appoint an Authenticating Agent or Agents with respect to any series of Securities which
shall be authorized to act on behalf of the Trustee to authenticate the Securities of such Series issued upon original issue and
upon exchange, registration of transfer, partial conversion or partial redemption or pursuant to Section 306, and Securities of such
series so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities of such series
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 so appointed with respect to such series and a certificate of authentication executed
on behalf of the Trustee by an Authenticating Agent so appointed with respect to such series. Each Authenticating Agent shall be acceptable
to the Company and shall at all times be a corporation organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus
of not less than $50,000,000 and subject to supervision or examination by Federal or State authority. If such Authenticating Agent publishes
reports of condition at least annually pursuant to law or to the requirements of said supervising or examining authority, then for the
purposes of this Section 614, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital
and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 614, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section 614.
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 614, without the execution or filing of any paper or any further act on the part of
the Trustee, the Company, the Authenticating Agent or such successor corporation.
An Authenticating Agent may
resign at any time by giving written notice thereof to the Trustee and to the Company. The Trustee may at any time terminate the agency
of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section 614, the Trustee may appoint a successor Authenticating Agent with respect to any series of Securities
which shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of such series in the
manner provided in Section 106. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested
with all rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 614.
The Company agrees to pay
to each Authenticating Agent from time to time reasonable compensation for its services under this Section 614.
If an appointment is made
pursuant to this Section 614 with respect to Securities of any series, the Securities of such series may have endorsed thereon, in
addition to the Trustee’s certificate of authentication, an alternate certificate of authentication in the following form:
This is one of the Securities
of the series designated herein and referred to in the within-mentioned Indenture.
| |
COMPUTERSHARE TRUST COMPANY, N.A., As Trustee |
| By | [NAME OF AUTHENTICATING AGENT], |
| | | As Authenticating Agent |
Article VII
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701 Company
to Furnish Trustee Names and Addresses of Holders. The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually,
not later than [ ] and [ ]
in each year, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each
series as of the immediately preceding [ ] or
[ ] as the case may be, and
(2) at
such other times as the Trustee may request in writing, within 30 days after the receipt by the Company, of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses
received by the Trustee in its capacity as Security Registrar.
Section 702 Preservation
of Information; Communications to Holders. 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 701 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 701 upon receipt of a new list so furnished.
The rights of Holders to communicate
with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges
of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities,
by receiving and holding the same, agrees with the Company and the Trustee that neither of the Company nor the Trustee nor any agent of
any 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 703 Reports
by Trustee. The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto.
Reports so required to be
transmitted at stated intervals of not more than 12 months shall be transmitted no later than [ ]
and shall be dated as of [ ] in each calendar
year, commencing in 20[ ].
A copy of each such report
shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed,
with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange and
of any delisting thereof.
Section 704 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, if any, at the times and in the manner provided
pursuant to such Act; provided that any such information, documents or reports required to be filed with the Commission pursuant
to Section 13 or 15(d) of the Exchange Act need not be filed with the Trustee until the 15th day after the same are actually
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 actual or constructive notice of any information contained therein or determinable
from information contained therein, including the compliance by the Company with any of its covenants hereunder (as to which the Trustee
is entitled to rely exclusively on Officers’ Certificates). The Company will be deemed to have furnished each report required above
to the Trustee and the Holders of the Securities if it has filed such report with the SEC using the EDGAR filing system or if such report
is otherwise publicly available. The Trustee shall have no obligation to determine whether or not such reports have been filed on the
EDGAR filing system.
Article VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 801 Company
May Consolidate, Etc., Only on Certain Terms. The Company shall not, in a single transaction or a series of related transactions,
consolidate with or merge into any other Person or sell, convey, transfer or lease all or substantially all its properties and assets
to any Person, and the Company shall not permit any Person to consolidate with or merge into the Company, unless:
(1) in
case the Company shall consolidate with or merge into another Person or sell, convey, transfer or lease all or substantially all its properties
and assets to any Person, the Person formed by such consolidation or into which the Company is merged or the Person which acquires by
sale, conveyance or transfer, or which leases, all or substantially all the properties and assets of the Company shall be a corporation,
limited liability company, partnership or trust, shall be organized and validly existing under the laws of the United States, any state
thereof or the District of Columbia and shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Trustee,
in form reasonably satisfactory to the Trustee, the due and punctual payment of the principal of and any premium and interest on all the
Securities and the performance or observance of every covenant of this Indenture on the part of the Company to be performed or observed
and, for each Security that by its terms provides for conversion, shall have provided for the right to convert such Security in accordance
with its terms;
(2) immediately
after giving effect to such transaction and treating any Indebtedness which becomes an obligation of the Company or any Subsidiary as
a result of such transaction as having been incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become an Event of Default, shall have happened and be continuing; and
(3) the
Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that such consolidation, merger,
sale, conveyance, transfer or lease and, if a supplemental indenture is required in connection with such transaction, such supplemental
indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied
with.
Section 802 Successor
Substituted. Upon any consolidation of the Company with, or merger of the Company into, any other Person or any sale, conveyance,
transfer or lease of all or substantially all the properties and assets of the Company in accordance with Section 801, the successor
Person formed by such consolidation or into which the Company is merged or to which such sale, conveyance, transfer or lease is made shall
succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture with the same effect as
if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the Securities.
Article IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental
Indentures Without Consent of Holders. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, without the consent of any Holders, the Company, when authorized by 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 satisfactory to the Trustee, for any of the following
purposes:
(1) 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, as the case may be; or
(2) to
add to the covenants of the Company for the benefit of the Holders of all or any Securities of any series (and if such covenants are to
be for the benefit of less than all Securities of such series, stating that such covenants are expressly being included solely for the
benefit of such Securities within such series) or to surrender any right or power herein conferred upon the Company with regard to all
or any Securities of any series (and if any such surrender is to be made with regard to less than all Securities of such series, stating
that such surrender is expressly being made solely with regard to such Securities within such series); or
(3) to
add any additional Events of Default for the benefit of the Holders of all or any Securities of any series (and if such additional Events
of Default are to be for the benefit of less than all Securities of such series, stating that such additional Events of Default are expressly
being included solely for the benefit of such Securities within such series); or
(4) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal, and with or without interest coupons, or to permit or facilitate
the issuance of Securities in uncertificated form; or
(5) to
add to, change or eliminate any of the provisions of this Indenture in respect of all or any Securities of any series (and if such addition,
change or elimination is to apply with respect to less than all Securities of such series, stating that it is expressly being made to
apply solely with respect to such Securities within such series), provided that any such addition, change or elimination (A) shall
neither (i) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the
benefit of such provision nor (ii) modify the rights of the Holder of any such Security with respect to such provision or (B) shall
become effective only when there is no such Security Outstanding; or
(6) to
secure the Securities; or
(7) to
establish the form or terms of all or any Securities of any series as permitted by Sections 201 and 301; or
(8) 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, pursuant to the requirements of Section 611; or
(9) to
add to or change any of the provisions of this Indenture with respect to any Securities that by their terms may be converted into securities
or other property other than Securities of the same series and of like tenor, in order to permit or facilitate the issuance, payment or
conversion of such Securities; or
(10) to
conform the text of this Indenture or any Securities to any provision of the “Description of the Notes” (or comparable) section
in any offering memorandum, prospectus or prospectus supplement of the Company prepared from time to time after the date of this Indenture
with respect to the offer and sale of Securities of any series, to the extent that such provision was intended to be a verbatim recitation
of a provision of this Indenture, the Securities; which intention shall be established by an Officers’ Certificate; or
(11) to
cure any ambiguity, to correct or supplement any provision herein which may be defective or 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 pursuant
to this Clause (12) shall not adversely affect the interests of the Holders of Securities of any series in any material respect.
The Trustee is hereby authorized
to join with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but
the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustee’s own rights, duties
or immunities under this Indenture or otherwise.
Section 902 Supplemental
Indentures With Consent of Holders. Except as may otherwise be provided pursuant to Section 301 for all or any specific Securities
of any series, with the consent of the Holders of a majority in principal amount (including consents obtained in connection with a purchase
of, or tender offer or exchange offer for, Securities) of the Outstanding Securities of all series affected by such supplemental indenture
(considered together as one class for this purpose and such affected Securities potentially being Securities of the same or different
series and, with respect to any series, potentially comprising fewer than all the Securities of such series), by Act of said Holders delivered
to the Company and the Trustee, the Company, when authorized by 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 or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided,
however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby
(including consents obtained in connection with a purchase of, or tender offer or exchange offer for, Securities),
(1) change
the Stated Maturity of the principal of, or any installment of principal of or interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or any premium payable upon the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security which would be due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502, or permit the Company to redeem any Security if, absent such supplemental indenture, the Company
would not be permitted to do so, or change any Place of Payment where, or the coin or 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, on or after the Redemption Date), or
(2) if
any Security provides that the Holder may require the Company to repurchase or convert such Security, impair such Holder’s right
to require repurchase or conversion of such Security on the terms provided therein, or
(3) reduce
the percentage in principal amount of the Outstanding Securities of any one or more series (considered separately or together as one class,
as applicable, and whether comprising the same or different series or less than all the Securities of a series), the consent of whose
Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture, or
(4) modify
any of the provisions of this Section 902, Section 513 or Section 1006, 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 with respect
to changes in the references to “the Trustee” and concomitant changes in this Section 902 and Section 1006, or the
deletion of this proviso, in accordance with the requirements of Sections 611 and 901(8).
A supplemental indenture which
changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one
or more particular Securities or series of Securities, or which modifies the rights of the Holders of such Securities or series with respect
to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of any other Securities
or of any other series, as applicable.
It shall not be necessary
for any Act of Holders under this Section 902 to approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof. A consent to any indenture supplemental hereto by or on behalf of any Holder
of Securities given in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered
invalid by such purchase, tender or exchange.
Section 903 Execution
of Supplemental Indentures. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this
Article or the modifications thereby of the trusts created by this Indenture, the Trustee shall be entitled to receive, and (subject
to Section 601) shall be fully protected in relying upon, an Opinion of Counsel and Officers’ Certificate stating that the
execution of such supplemental indenture is authorized or permitted by this Indenture and constitutes the legal, valid and binding obligation
of the Company enforceable against it in accordance with its terms. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
Section 904 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 905 Conformity
with Trust Indenture Act. Every supplemental indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
Section 906 Reference
in Securities to Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified
as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
Section 907 Subordination
Unimpaired. No supplemental indenture shall adversely affect the interests of any holder of Senior Debt then outstanding under Article XIV
in any material respect unless each holder of Senior Debt so affected (or the group or representative thereof authorized or required to
consent thereto pursuant to the instrument creating or evidencing, or pursuant to which there is outstanding, such Senior Debt) consents
to such supplemental indenture in writing.
Article X
COVENANTS
Section 1001 Payment
of Principal, Premium and Interest. The Company covenants and agrees for the benefit of each series of Securities that it will duly
and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the
Securities and this Indenture. With respect to physical Securities, if any, presentation is due at maturity.
Section 1002 Maintenance
of Office or Agency. The Company will 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 may be surrendered for conversion 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 will give prompt written notice to the Trustee of the location,
and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or
agency 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 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 such purposes and may from time to time rescind such designations; provided, however, that no such designation
or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for 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.
With respect to any Global
Security, and except as otherwise may be specified for such Global Security as contemplated by Section 301, the Corporate Trust Office
of the Trustee shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration
of transfer or exchange, or where successor Securities may be delivered in exchange therefor, provided, however, that any
such payment, presentation, surrender or delivery effected pursuant to the Applicable Procedures of the Depositary for such Global Security
shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
Section 1003 Money
for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series
of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and
interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify
the Trustee 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 prior to 11:00 A.M., New York City time, on each due date
of the principal of or any premium or interest on any Securities of that series, deposit (or, if the Company has deposited any trust funds
with a trustee pursuant to Section 1304(1), cause such trustee to deposit) with a Paying Agent a sum sufficient to pay such amount,
such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company will cause each
Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section 1003, that such Paying Agent will (1) comply with
the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the
Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series,
upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect
of the Securities of that series.
The Company may at any time,
for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order direct
any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying
Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Subject to applicable escheat
laws, 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 any premium or interest 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 on Company Request, or (if then held by the Company) shall be discharged from
such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof,
shall thereupon cease.
Section 1004 Corporate
Existence. Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory), licenses and franchises; provided, however, that
the Company will not be required to preserve any such right, license or franchise if it shall determine that the preservation thereof
is no longer desirable in the conduct of the business of the Company.
Section 1005 Statement
by Officers as to Default. The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company
ending after the date hereof, an Officers’ Certificate, stating that a review of the activities of the Company during the preceding
fiscal year has been made under the supervision of the signing Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture with respect to the Securities of each series Outstanding and further stating,
as to each such Officer signing such certificate, that to the best of such Officer’s actual knowledge, the Company has kept, observed,
performed and fulfilled its obligations under this Indenture with respect to Securities of such series and is not in default in the performance
and observance of any of the material terms, provisions and conditions of this Indenture with respect to Securities of such series, in
each case, so as not to result in any default or Event of Default with respect to Securities of such series (or, if a default or Event
of Default with respect to Securities of such series shall have occurred and be continuing, describing all such defaults or Events of
Default of which such Officer may have knowledge and what action the Company is taking or propose to take with respect thereto).
Section 1006 Waiver
of Certain Covenants. Except as otherwise provided pursuant to Section 301 for all or any Securities of any series, the Company
may, with respect to all or any Securities of any series, omit in any particular instance to comply with any term, provision or condition
set forth in Section 1004 or in any covenant provided pursuant to Sections 301(18), 901(2), 901(6) or 901(7) for the
benefit of the Holders of such series or in Article VIII if, before the time for such compliance, the Holders of a majority in principal
amount (including waivers obtained in connection with a purchase of, or tender offer or exchange offer for, Securities) of all Outstanding
Securities affected by such waiver (considered together as one class for this purpose and such affected Securities potentially being Securities
of the same or different series and, with respect to any particular series, potentially comprising fewer than all the Securities of such
series) shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision
or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect. A waiver of compliance given by or on behalf of any Holder of Securities
in connection with a purchase of, or tender or exchange offer for, such Holder’s Securities will not be rendered invalid by such
purchase, tender or exchange.
Article XI
REDEMPTION OF SECURITIES
Section 1101 Applicability
of Article. Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their
terms and (except as otherwise specified as contemplated by Section 301 for such Securities) in accordance with this Article.
Section 1102 Election
to Redeem; Notice to Trustee. The election of the Company to redeem any Securities shall be established in or pursuant to a Board
Resolution or in another manner specified as contemplated by Section 301 for such Securities. If the Company elects to redeem the
Securities pursuant to this Article XI, it shall notify the Trustee in writing at least 5 Business Days prior to the date of the
giving of the notice of redemption (unless a shorter notice shall be satisfactory to the Trustee), of the Redemption Date, of the principal
amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. Such notice shall
be accompanied by an Officer’s Certificate and an Opinion of Counsel from the Company to the effect that such redemption will comply
with the conditions herein. In the case of any redemption of Securities (1) prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, or (2) pursuant to an election of the Company that is subject
to a condition specified in the terms of the Securities of the series to be redeemed, the Company shall furnish the Trustee with an Officers’
Certificate evidencing compliance with such restriction or condition. Redemptions may be conditioned upon the occurrence of conditions
precedent with respect to the redemption.
Section 1103 Selection
by Trustee of Securities to Be Redeemed. If less than all the Securities of any series are to be redeemed (unless all the Securities
of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities
to be redeemed shall be selected by the Trustee, from the Outstanding Securities of such series not previously called for redemption,
pro rata (and when the Securities are in the form of Global Securities, the Trustee shall select such Securities in accordance
with the Applicable Procedures of the Depositary), and which may provide for the selection for redemption of a portion of the principal
amount of any Security of such series, provided that the unredeemed portion of the principal amount of any Security shall be in
an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security. If less than all the
Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular
Securities to be redeemed shall be selected by the Trustee, from the Outstanding Securities of such series and specified tenor not previously
called for redemption in accordance with the preceding sentence.
If any Security selected for
partial redemption is converted in part before termination of the conversion right with respect to the portion of the Security so selected,
the converted portion of such Security shall be deemed (so far as it may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of
such selection, subject to the Applicable Procedures of DTC.
The Trustee shall promptly
notify the Company and each Security Registrar in writing of the Securities selected for redemption as aforesaid and, in case of any Securities
selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two
preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed
in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall
be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture,
unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities
redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
Section 1104 Notice
of Redemption. Notice of redemption shall be given in the manner provided in Section 106 not less than 30 days nor more than
60 days prior to the Redemption Date (or within such period as otherwise specified as contemplated by Section 301 for the relevant
Securities), to each Holder of Securities to be redeemed, at his address appearing in the Security Register, except that redemption notices
may be sent more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or
a satisfaction and discharge of this Indenture pursuant to Article IV or XIII hereof, respectively.
All notices of redemption
shall identify the Securities to be redeemed (including CUSIP numbers, if any) and shall state:
(1) the
Redemption Date,
(2) the
Redemption Price,
(3) if
less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification
(and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and,
if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of
the particular Security to be redeemed,
(4) that
on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date,
(5) the
place or places where each such Security is to be surrendered for payment of the Redemption Price,
(6) the
conditions precedent for the redemption, if any,
(7) if
such redemption is subject to satisfaction of one or more conditions precedent, that, in the Company’s discretion, the redemption
date may be delayed until such time as any or all such conditions shall be satisfied, or such redemption may not occur and such notice
may be rescinded in the event that any or all such conditions shall not have been satisfied by the redemption date or by the redemption
date so delayed,
(8) for
any Securities that by their terms may be converted, the terms of conversion, the date on which the right to convert the Security to be
redeemed will terminate and the place or places where such Securities may be surrendered for conversion, and
(9) that
the redemption is for a sinking fund, if such is the case.
The Company shall provide
written notice of the delay of such redemption date or the rescission of such notice of redemption (and rescission and cancellation of
the redemption of the Notes) to the Trustee no later than 10:00 A.M. New York City time, (subject to the Applicable Procedures) on
the redemption date or the redemption date as so delayed. Upon receipt of such notice of the delay of such redemption date or the rescission
of such notice of redemption, such redemption date shall be automatically delayed or such notice of redemption shall be automatically
rescinded, as applicable, and the redemption of the Notes shall be automatically delayed or rescinded and cancelled, as applicable, as
provided in such notice.
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request at least two Business Days
prior to the date the Redemption Notice will be sent (unless a shorter notice shall be satisfactory to the Trustee), by the Trustee in
the name and at the expense of the Company; provided, however, that the Officers’ Certificate delivered to the Trustee
pursuant to Section 1102 hereof requests that the Trustee give such notice and sets forth the information to be stated in such notice
as required by this Section 1104.
Section 1105 Deposit
of Redemption Price. Prior to 11:00 A.M., New York City time, on any Redemption Date, the Company shall deposit with the Trustee or
with a Paying Agent (or, if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities which are to be redeemed on that date, other than any Securities called for redemption on that date which
have been converted prior to the date of such deposit.
If any Security called for
redemption is converted, any money deposited with the Trustee or with any Paying Agent or so segregated and held in trust for the redemption
of such Security shall (subject to any right of the Holder of such Security or any Predecessor Security to receive interest as provided
in the last paragraph of Section 307 or in the terms of such Security) be paid to the Company upon Company Request or, if then held
by the Company, shall be discharged from such trust.
Section 1106 Securities
Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption
Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest or unless the conditions for the redemption have not been satisfied) such
Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that, unless otherwise specified as contemplated by Section 301, installments of interest whose Stated Maturity is on or prior to
the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the provisions of Section 307.
If any Security called for
redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest
from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107 Securities
Redeemed in Part. Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and
the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company 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.
Section 1108 No
Limit on Repurchases. Nothing in this Indenture or the Securities shall prohibit or limit the right of the Company or any Affiliate
of the Company to repurchase Securities from time to time at any price in open market purchases or private transactions at negotiated
prices, by tender offer or otherwise, in each case without any notice to or consent by Holders. Any Securities purchased by the Company
or any Affiliate of the Company may, to the extent permitted by law and at the discretion of the Company, be held, resold or delivered
to the Trustee for cancellation. Any such Securities delivered to the Trustee for cancellation may not be resold and shall be disposed
of by the Trustee in accordance with its customary procedures.
Article XII
SINKING FUNDS
Section 1201 Applicability
of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of any series
except as otherwise specified as contemplated by Section 301 for such Securities.
The minimum amount of any
sinking fund payment provided for by the terms of any Securities 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 is herein referred to as an “optional
sinking fund payment.” If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject
to reduction as provided in Section 1202. Each sinking fund payment shall be applied to the redemption of Securities as provided
for by the terms of such Securities.
Section 1202 Satisfaction
of Sinking Fund Payments with Securities. The Company (1) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (2) may apply as a credit Securities of a series which have been converted in accordance with their terms
or 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, in each case in satisfaction of all or any part
of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities
as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been
previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption
Price, as specified in the Securities so to be redeemed (or at such other prices as may be specified for such Securities as contemplated
in Section 301), for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203 Redemption
of Securities for Sinking Fund. Not less than 45 days (or such shorter period as shall be satisfactory to the Trustee) prior to each
sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officers’ Certificate specifying the amount
of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which
is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities
pursuant to Section 1202 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 days prior to 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 1103 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 1104. Such notice having been duly given, the redemption of such Securities shall be made upon
the terms and in the manner stated in Sections 1106 and 1107.
Article XIII
DEFEASANCE AND COVENANT DEFEASANCE
Section 1301 Company’s
Option to Effect Defeasance or Covenant Defeasance. Unless otherwise designated pursuant to Section 301(15), the Securities of
any series of Securities shall be subject to defeasance or covenant defeasance pursuant to such Section 1302 or 1303, in accordance
with any applicable requirements provided pursuant to Section 301 and upon compliance with the conditions set forth below in this
Article. The Company may elect, at its option, at any time, to have Section 1302 or Section 1303 applied to any Securities or
any series of Securities so subject to defeasance or covenant defeasance. Any such election shall be evidenced by a Board Resolution or
in another manner specified as contemplated by Section 301 for such Securities.
Section 1302 Defeasance
and Discharge. Upon the Company’s exercise of its option (if any) to have this Section 1302 applied to any Securities or
any series of Securities, as the case may be, the Company shall be deemed to have been discharged from its obligations, and the provisions
of Article XIV shall cease to be effective, with respect to such Securities as provided in this Section 1302 on and after the
date the conditions set forth in Section 1304 are satisfied (hereinafter called “Defeasance”). For this purpose, such
Defeasance means that the Company shall be deemed to have paid and discharged the entire Indebtedness represented by such Securities and
to have satisfied all their other respective 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), subject to the following which
shall survive until otherwise terminated or discharged hereunder: (1) the rights of Holders of such Securities to receive, solely
from the trust fund described in Section 1304(1) and as more fully set forth in such Section, payments in respect of the principal
of and any premium and interest on such Securities when payments are due, or, if applicable, to convert such Securities in accordance
with their terms, (2) the obligations of the Company with respect to such Securities under Sections 304, 305, 306, 1002 and
1003 and, if applicable, their obligations with respect to the conversion of such Securities, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to compliance with this Article, the Company may exercise its
option (if any) to have this Section 1302 applied to any Securities notwithstanding the prior exercise of its option (if any) to
have Section 1303 applied to such Securities.
Section 1303 Covenant
Defeasance. Upon the Company’s exercise of its option (if any) to have this Section 1303 applied to any Securities or any
series of Securities, as the case may be, (1) the Company shall be released from its obligations under Section 1004 and any
covenants provided pursuant to Section 301(18), 901(2), 901(6) or 901(7) for the benefit of the Holders of such Securities
and (2) the occurrence of any event specified in Sections 501(4) (with respect to Section 1004 and any such covenants
provided pursuant to Section 301(18), 901(2), 901(6) or 901(7)) and 501(8) shall
be deemed not to be or result in an Event of Default, and (3) the provisions of Article XIV shall cease to be effective, in
each case with respect to such Securities as provided in this Section 1303 on and after the date the conditions set forth in Section 1304
are satisfied (hereinafter called “Covenant Defeasance”). For this purpose, such Covenant Defeasance means that, with respect
to such 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 specified Section (to the extent so specified in the case of Section 501(4) or Article XIV, whether
directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any reference in any such
Section to any other provision herein or in any other document, but the remainder of this Indenture and such Securities thereof shall
be unaffected thereby.
Section 1304 Conditions
to Defeasance or Covenant Defeasance. The following shall be the conditions to the application of Section 1302 or Section 1303
to any Securities or any series of Securities, as the case may be:
(1) The
Company shall irrevocably have deposited or caused to be irrevocably deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the provisions of this Article applicable to it) as trust
funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefits
of the Holders of such Securities, (A) money in an amount, or (B) U.S. Government Obligations which through the scheduled payment
of principal and interest in respect thereof in accordance with their terms will provide, not later than one day before the due date of
any payment, money in an amount, or (C) such other obligations or arrangements as may be specified as contemplated by Section 301
with respect to such Securities, or (D) a combination thereof, in each case sufficient (except in the case of clause (A), in the
opinion of a nationally recognized firm of independent public accountants or a nationally recognized investment banking firm expressed
in a written certification thereof delivered to the Trustee) to pay and discharge, and which shall be applied by the Trustee (or any such
other qualifying trustee) to pay and discharge, the principal of and any premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such Securities. As used herein, “U.S. Government Obligation”
means (x any security which is (i) a direct obligation of the United States of America for the payment of which the full faith and
credit of the United States of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America the payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or (ii), is not callable or redeemable at the option of the
issuer thereof, and (y) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act) as
custodian with respect to any U.S. Government Obligation which is specified in Clause (x) above and held by such bank for the account
of the holder of such depositary receipt, or with respect to any specific payment of principal of or interest on any U.S. Government Obligation
which is so specified and held, provided that (except as required by law) such custodian is not authorized to make any deduction
from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal or interest evidenced by such depositary receipt.
(2) In
the event of an election to have Section 1302 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of this instrument, there has been a change in the applicable Federal
income tax law, in either case (A) or (B) to the effect that, and based thereon such opinion shall confirm that, the Holders
of such Securities will not recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance and discharge
to be effected with respect to such Securities and will be subject to Federal income tax on the same amount, in the same manner and at
the same times as would be the case if such deposit, Defeasance and discharge were not to occur.
(3) In
the event of an election to have Section 1303 apply to any Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the Holders of such Securities will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be effected with respect to such Securities
and will be subject to Federal income tax on the same amount, in the same manner and at the same times as would be the case if such deposit
and Covenant Defeasance were not to occur.
(4) The
Company shall have delivered to the Trustee an Officers’ Certificate to the effect that neither such Securities nor any other Securities
of the same series, if then listed on any securities exchange, will be delisted as a result of such deposit.
(5) No
event which is, or after notice or lapse of time or both would become, an Event of Default with respect to such Securities or any other
Securities (other than such an event or Event of Default with respect to such Securities resulting solely from the incurrence of Indebtedness
or other borrowing of funds, or the grant of liens securing such Indebtedness or other borrowing, all or a portion of which are to be
applied to such deposit) shall have occurred and be continuing at the time of such deposit.
(6) Such
Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under, any other agreement or
instrument (other than this Indenture insofar as such Securities are concerned) to which the Company is a party or by which it is bound.
(7) The
Company shall have delivered to the Trustee an Officers’ Certificate stating that the deposit was not made by the Company with the
intent of preferring the Holders of such Securities over the other creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding creditors of the Company.
(8) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have been complied with.
Section 1305 Deposited
Money and U.S. Government Obligations to Be Held in Trust; Miscellaneous Provisions. Subject to the provisions of the last paragraph
of Section 1003, all money and U.S. Government Obligations (including the proceeds thereof) deposited with the Trustee or other qualifying
trustee (solely for purposes of this Section 1305 and Section 1306, the Trustee and any such other trustee are referred to collectively
as the “Trustee”) pursuant to Section 1304 in respect of any Securities 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 such Paying Agent
(including the Company acting as its own Paying Agent or any Subsidiary or Affiliate of the Company) 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 any premium and interest, but money
and U.S. Government Obligations so held in trust need not be segregated from other funds except to the extent required by law. Money and
U.S. Government Obligations (including the proceeds thereof) so held in trust shall not be subject to the provisions of Article XIV,
provided that the applicable conditions of Section 1304 have been satisfied.
The Company shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant
to Section 1304 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 Outstanding Securities.
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 U.S.
Government Obligations held by it as provided in Section 1304 with respect to any Securities 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 the Defeasance or Covenant Defeasance, as the case may be,
with respect to such Securities.
Section 1306 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this Article with respect to any Securities by
reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application,
then the respective obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant
to Section 1302 or 1303 shall be revived and reinstated as though no deposit had occurred pursuant to this Article with respect
to such Securities], until such time as the Trustee or Paying Agent is permitted to apply all money held in trust pursuant to Section 1305
with respect to such Securities in accordance with this Article; provided, however, that if the Company makes any payment
of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be
subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
Article XIV
SUBORDINATION OF SECURITIES
Section 1401 Securities
Subordinate to Senior Debt. The Company covenants and agrees, and each Holder of a Security, by his acceptance thereof, likewise covenants
and agrees, that, to the extent and in the manner hereinafter set forth in this Article, the Indebtedness represented by the Securities
and the payment of the principal of (and premium, if any) and interest on each and all of the Securities are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior Debt.
Notwithstanding the foregoing,
if a deposit referred to in Section 1304(1) is made pursuant to Section 1302 or Section 1303 with respect to any Securities
(and provided all other conditions set out in Section 1302 or Section 1303, as applicable, shall have been satisfied with respect
to such Securities), then no money or U.S. Government Obligations so deposited, and no proceeds thereon, will be subject to any rights
of holders of Senior Debt, including any such rights arising under this Article XIV.
Section 1402 Payment
Over of Proceeds Upon Dissolution, Etc. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary
and whether or not involving insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling
of assets and liabilities of the Company, then and in any such event the holders of Senior Debt shall be entitled to receive payment in
full of all amounts due or to become due on or in respect of all Senior Debt (including any interest accruing thereon after the commencement
of any such case or proceeding), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, before the Holders of the Securities are entitled to receive any payment on account of principal of (or
premium, if any) or interest on the Securities, and to that end the holders of Senior Debt shall be entitled to receive, for application
to the payment thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company being subordinated
to the payment of the Securities, which may be payable or deliverable in respect of the Securities in any such case, proceeding, dissolution,
liquidation or other winding up event.
In the event that, notwithstanding
the foregoing provisions of this Section 1402, the Trustee or the Holder of any Security shall have received any payment or distribution
of assets of the Company of any kind or character, whether in cash, property or securities, including any such payment or distribution
which may be payable or deliverable by reason of the payment of any other Indebtedness of the Company being subordinated to the payment
of the Securities, before all Senior Debt is paid in full or payment thereof provided for, and if such fact shall, at or prior to the
time of such payment or distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event
such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian,
assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment of all Senior Debt
remaining unpaid, to the extent necessary to pay all Senior Debt in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt; provided, however, payments to the Trustee in any of its capacities in respect of fees, expenses
or indemnities owed by the Company hereunder shall be allowed and the Trustee shall not be required to pay over or deliver such funds
as contemplated herein. Any taxes that have been withheld or deducted from any payment or distribution in respect of the Securities, or
any taxes that ought to have been withheld or deducted from any such payment or distribution that have been remitted to the relevant taxing
authority, shall not be considered to be an amount that the Trustee or the Holder of any Security receives for purposes of this Section 1402.
For purposes of this Article only,
the words “cash, property or securities” shall not be deemed to include shares of stock of the Company as reorganized or readjusted,
or securities of the Company or any other corporation or other entity, provided for by a plan of reorganization or readjustment which
are subordinated in right of payment to all Senior Debt which may at the time be outstanding to substantially the same extent as, or to
a greater extent than, the Securities are so subordinated as provided in this Article. The consolidation of the Company with, or the merger
of the Company into, or the sale, conveyance, transfer or lease by the Company of all or substantially all its properties and assets to,
another Person upon the terms and conditions set forth in Article VIII, or the liquidation or dissolution of the Company following
any such sale, conveyance or transfer, shall not be deemed a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshalling of assets and liabilities of the Company for the purposes of this Section 1402 if the Person
formed by such consolidation or into which the Company is merged or the Person which acquires by sale, conveyance, transfer or lease all
or substantially all of such properties and assets, as the case may be, shall, as a part of such consolidation, merger, sale, conveyance,
transfer or lease, comply with the conditions set forth in Article VIII.
Section 1403 Prior
Payment to Senior Debt Upon Acceleration of Securities. In the event that any Securities are declared due and payable before their
Stated Maturity, then and in such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or
to become due on or in respect of all Senior Debt or provision shall be made for such payment in cash, before the Holders of the Securities
are entitled to receive any payment (including any payment which may be payable by reason of the payment of any other Indebtedness of
the Company being subordinated to the payment of the Securities) by the Company on account of the principal of (or premium, if any) or
interest on the Securities or on account of the purchase or other acquisition of Securities; provided, however, that nothing in this Section 1403
shall prevent the satisfaction of any sinking fund payment in accordance with Article XII by delivering and crediting pursuant to
Section 1202 Securities which have been acquired (upon redemption or otherwise) prior to such declaration of acceleration.
In the event that, notwithstanding
the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the foregoing provisions
of this Section 1403, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Company.
Section 1404 No
Payment When Senior Debt in Default. Subject to the last paragraph of this Section 1404, (a) (i) in the event and during
the continuation of any default in the payment of principal of (or premium, if any) or interest on any Senior Debt beyond any applicable
grace period with respect thereto, or (ii) in the event that any event of default with respect to any Senior Debt shall have occurred
and be continuing permitting the holders of such Senior Debt (or a trustee on behalf of the holders thereof) to declare such Senior Debt
due and payable prior to the date on which it would otherwise have become due and payable, whether or not such Senior Debt has been so
accelerated (provided that, in the case of Clause (i) or Clause (ii), if such default in payment or event of default shall have been
cured or waived or shall have ceased to exist and any such declaration of acceleration shall have been rescinded or annulled, then such
default in payment or event of default, as the case may be, shall be deemed not to have occurred for the purposes of this Section 1404),
or (b) in the event that any judicial proceeding shall be pending with respect to any such default in payment or event of default
that shall be deemed to have occurred for the purpose of this Section 1404, then no payment (including any payment which may be payable
by reason of the payment of any other Indebtedness of the Company being subordinated to the payment of the Securities) shall be made by
the Company on account of principal of (or premium, if any) or interest on the Securities or on account of the purchase or other acquisition
of Securities; provided, however, that nothing in this Section 1404 shall prevent the satisfaction of any sinking fund payment in
accordance with Article XII by delivering and crediting pursuant to Section 1202 Securities which have been acquired (upon redemption
or otherwise) prior to such default in payment.
In the event that, notwithstanding
the foregoing, the Company shall make any payment to the Trustee or the Holder of any Security prohibited by the provisions of this Section 1404,
and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder,
then and in such event such payment shall be paid over and delivered forthwith to the Company.
Notwithstanding anything to
the contrary, payments to the Trustee in any of its capacities in respect of fees, expenses or indemnities owed by the Company hereunder,
shall be permitted notwithstanding the occurrence of any event described in (a) or (b).
No default in payment or event
of default with respect to any Senior Debt shall be deemed to be a default in payment or event of default of the kind specified in Clause
(a)(i) or (a)(ii) of this Section 1404, and no judicial proceeding with respect to any such default in payment or event
of default shall be deemed to be a judicial proceeding of the kind specified in Clause (b) of this Section 1404, if (x) the
Company shall be disputing the occurrence or continuation of such default in payment or event of default, or any obligation purportedly
giving rise to such default in payment or event of default, and (y) no final judgment holding that such default in payment or event
of default has occurred and is continuing shall have been issued. For this purpose, a “final judgment” means a judgment that
is issued by a court having jurisdiction over the Company or its property, is binding on the Company or their property, is in full force
and effect and is not subject to judicial appeal or review (including because the time within which a party may seek appeal or review
has expired), provided that, if any such judgment has been issued but is subject to judicial appeal or review, it shall nevertheless be
deemed to be a final judgment unless the Company shall in good faith be prosecuting such appeal or a proceeding for such review and shall
have obtained a stay of execution pending such appeal or review. Notwithstanding the foregoing, this paragraph shall not apply to any
default in payment or event of default with respect to any Senior Debt as to which the Company has waived the application of this paragraph
in the instrument evidencing such Senior Debt or by which such Senior Debt is created, incurred, assumed or guaranteed by the Company.
Section 1405 Payment
Permitted in Certain Situations. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities
shall prevent (a) the Company, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other
winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Company referred to in Section 1402
or under the conditions described in Section 1403 or Section 1404, from making payments at any time of or on account of the
principal of (and premium, if any) or interest on the Securities, or on account of the purchase or other acquisition of Securities, or
(b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest on the Securities or the retention of such payment by the Holders, if, at the time of such application by
the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article.
Section 1406 Subrogation
to Rights of Holders of Senior Debt. Subject to the payment in full of all Senior Debt or the provision for such payment in cash or
cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of the Securities shall be subrogated
to the extent of the payments or distributions made to the holders of such Senior Debt pursuant to the provisions of this Article (equally
and ratably with the holders of Indebtedness of the Company which by its express terms is subordinated to other Indebtedness of the Company
to substantially the same extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of subrogation)
to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to
the Senior Debt until the principal of (and premium, if any) and interest on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of
the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions
of this Article to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Company, its creditors
other than holders of Senior Debt and the Holders of the Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
Section 1407 Provisions
Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the
relative rights of the Holders of the Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities, the obligation of the Company, which is absolute and unconditional
(and which, subject to the rights under this Article of the holders of Senior Debt, is intended to rank equally with all other general
obligations of the Company), to pay to the Holders of the Securities the principal of (and premium, if any) and interest on the Securities
as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Company
of the Holders of the Securities and creditors of the Company other than the holders of Senior Debt; or (c) prevent the Trustee or
the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article of the holders of Senior Debt to receive cash, property and securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 1408 Trustee
to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf
to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the
Trustee his attorney-in-fact for any and all such purposes.
Section 1409 No
Waiver of Subordination Provisions. No right of any present or future holder of any Senior Debt to enforce subordination as herein
provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any non-compliance by the Company with the terms, provisions and covenants
of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Without in any way limiting
the generality of the foregoing paragraph, the holders of Senior Debt may, at any time and from time to time, without the consent of or
notice to the Trustee or the Holders of the Securities, without incurring responsibility to the Holders of the Securities and without
impairing or releasing the subordination provided in this Article or the obligations hereunder of the Holders of the Securities to
the holders of Senior Debt do any one or more of the following: (a) change the manner, place or terms of payment or extend the time
of payment of, or renew or alter, Senior Debt or otherwise amend or supplement in any manner Senior Debt or any instrument evidencing
the same or any agreement under which Senior Debt is outstanding; (b) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (c) release any Person liable in any manner for the collection of Senior Debt;
and (d) exercise or refrain from exercising any rights against the Issuers and any other Person.
Section 1410 Notice
to Trustee. The Company shall give prompt written notice to the Trustee of any fact known to the Company which would prohibit the
making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making
of any payment to or by the Trustee in respect of the Securities, unless and until the Trustee shall have received written notice thereof
at its Corporate Trust Office from the Company or a holder of Senior Debt or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 601, shall be entitled in all respects to assume that no such
facts exist; provided that, if a Responsible Officer of the Trustee shall not have received the notice provided for in this Section 1410
at least three Business Days prior to the date upon which, by the terms of this Indenture, any monies shall become payable for any purpose
(including, without limitation, the payment of the principal of or premium, if any, or interest on any Security), then, notwithstanding
anything herein to the contrary, the Trustee shall have full power and authority to receive any monies from the Company and to apply the
same to the purpose for which they were received, and shall not be affected by any notice to the contrary that may be received by it on
or after such three Business Day period except for an acceleration of the Securities prior to such application..
Subject to the provisions
of Section 601, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself
to be a holder of Senior Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee
therefor). In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person
as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under
this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1411 Reliance
on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in this
Article, the Trustee, subject to the provisions of Section 601, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution,
the holders of Senior Debt and other Indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
Section 1412 Trustee
Not Fiduciary For Holders of Senior Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt
and shall not be liable to any such holders or creditors if it shall in good faith pay over or distribute to Holders of Securities or
to the Company or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of
this Article or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such
of its covenants or obligations as are specifically set forth in this Article and no implied covenants or obligations with respect
to holders of Senior Debt shall be read into this Indenture against the Trustee.
Section 1413 Rights
of Trustee as Holder of Senior Debt; Preservation of Trustee’s Rights. The Trustee in its individual capacity shall be entitled
to all the rights set forth in this Article with respect to any Senior Debt which may at any time be held by it, to the same extent
as any other holder of Senior Debt and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall
apply to claims of, or payments to, the Trustee under or pursuant to Section 606.
Section 1414 Article Applicable
to Paying Agents. In case at any time any Paying Agent other than the Trustee shall have been appointed by the Company and be then
acting hereunder, the term “Trustee” as used in this Article shall in such case (unless the context otherwise requires)
be construed as extending to and including such Paying Agent within its meaning as fully for all intents and purposes as if such Paying
Agent were named in this Article in addition to or in place of the Trustee; provided, however, this Article shall not be applicable
if the Company or an Affiliate thereof is a Paying Agent.
This instrument may be executed
in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument. Delivery of an executed counterpart of this Indenture by facsimile or electronic transmission shall be
equally as effective as delivery of an original executed counterpart of this Indenture. Any party delivering an executed counterpart of
this Indenture by facsimile or electronic transmission also shall deliver an original executed counterpart of this Indenture, but failure
to deliver an original executed counterpart shall not affect the validity, enforceability and binding effect of this Indenture.
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed as of the day and year first above written.
| |
ANTERO MIDSTREAM CORPORATION |
[Signature Page to Indenture]
| |
COMPUTERSHARE TRUST COMPANY, N.A. |
[Signature Page to Indenture]
Exhibit 5.1
February 12, 2025
Antero Midstream Corporation
1615 Wynkoop
Street
Denver, Colorado 80202
Ladies and Gentlemen:
We have acted as counsel for
Antero Midstream Corporation, a Delaware corporation (the “Company”), with respect to the preparation of the Registration
Statement on Form S-3 (the “Registration Statement”) filed on the date hereof with the Securities and Exchange
Commission (the “Commission”) in connection with the registration by the Company under the Securities Act of 1933 (the
“Securities Act”) of the offer and sale from time to time, pursuant to Rule 415 under the Securities Act, (a) by
the Company of (i) debt securities (the “Debt Securities”), which may be either senior or subordinated and may
be issued in one or more series, consisting of notes, debentures or other evidences of indebtedness, certain of which may be convertible
or exchangeable into common stock, par value $0.01 per share, of the Company (the “Common Stock”); (ii) shares
of Common Stock; (iii) shares of preferred stock, par value $0.01 per share, of the Company (the “Preferred Stock”),
in one or more series, which may be convertible or exchangeable into shares of Common Stock or exchangeable into Debt Securities; (iv) warrants
for the purchase of Debt Securities, Common Stock or Preferred Stock (“Warrants”), (v) depository shares representing
fractional interests in Preferred Stock (the “Depository Shares” and, together with the Debt Securities, Common Stock,
Preferred Stock and Warrants, the “Securities”), and (b) by one or more selling stockholders named in the Registration
Statement, a supplement to the Secondary Prospectus (as defined below), a post-effective amendment thereto or a document incorporated
by reference therein (the “Selling Stockholders”), of up to 144,033,190 shares of Common Stock (the “Resale
Common Stock”).
We have also participated
in the preparation of a Prospectus relating to the Securities (the “Primary Prospectus”) and a Prospectus relating
to the Resale Common Stock (the “Secondary Prospectus” and, together with the Primary Prospectus, the “Prospectuses”),
each of which is contained in the Registration Statement to which this opinion is an exhibit.
In connection with the opinions
expressed herein, we have examined, among other things, (i) the Certificate of Conversion, (ii) the Certificate of Incorporation
(the “Charter”), Certificate of Amendment to the Charter and the Amended and Restated Bylaws of the Company, (iii) the
Certificate of Designations, (iv) the Registration Rights Agreement, dated as of March 12, 2019, by and among the Company, and
the other parties listed on the signature pages thereto, (v) the Prospectuses, (vi) the form of Senior Debt Securities
Indenture (the “Senior Indenture”) filed as an exhibit to the Registration Statement, (vii) the form of Subordinated
Debt Securities Indenture (the “Subordinated Indenture,” and together with the Senior Indenture, the “Indentures”)
filed as an exhibit to the Registration Statement, (viii) certain equity award agreements of the Company (the “Award Agreements”)
and (ix) the records of corporate proceedings that have occurred prior to the date hereof with respect to the Registration Statement.
We have also reviewed such questions of law as we have deemed necessary or appropriate. As to matters of fact relevant to the opinions
expressed herein, and as to factual matters arising in connection with our examination of corporate documents, records and other documents
and writings, we have relied upon certificates and other communications of corporate officers of the Company, without further investigation
as to the facts set forth therein.
Vinson &
Elkins LLP Attorneys at Law
Austin
Dallas Denver Dubai Dublin Houston London Los Angeles
New
York Richmond San Francisco Tokyo Washington |
845
Texas Avenue, Suite 4700
Houston, TX 77002
Tel
+1.713.758.2222 Fax +1.713.758.2346 velaw.com |
 |
Antero
Midstream Corporation February 12, 2025 Page 2 |
In connection with rendering
the opinions set forth below, we have assumed that (i) all information contained in all documents reviewed by us is true and correct;
(ii) all signatures on all documents examined by us are genuine; (iii) all documents submitted to us as originals are authentic
and all documents submitted to us as copies conform to the originals of those documents; (iv) each person signing the documents that
we reviewed has the legal capacity and authority to do so; (v) the Registration Statement and any subsequent amendments (including
additional post-effective amendments), will be effective and comply with all applicable laws; (vi) all Securities will be issued
and/or sold in compliance with applicable federal and state securities laws and in the manner specified in the Registration Statement
and the applicable prospectus supplement to the applicable Prospectus; (vii) the applicable Indenture will have been duly qualified
under the Trust Indenture Act of 1939, as amended; (viii) one or more prospectus supplements to the applicable Prospectus will have
been prepared and filed with the Commission describing the Securities offered thereby; (ix) the Indentures, and any supplemental
indenture relating to a particular series of Debt Securities, will be duly authorized, executed and delivered by the parties thereto in
substantially the form reviewed by us; (x) a definitive purchase, underwriting or similar agreement with respect to any Securities
offered will have been duly authorized and validly executed and delivered by the Company and the other parties thereto; (xi) any
securities issuable upon conversion, exchange or exercise of any Debt Securities, being offered will have been duly authorized, created
and, if appropriate, reserved for issuance upon such conversion, exchange or exercise or Preferred Stock; (xii) with respect to shares
of Common Stock or Preferred Stock offered by the Company, there will be sufficient shares of Common Stock or Preferred Stock authorized
under the Company’s charter documents and not otherwise reserved for issuance and (xiii) the Resale Common Stock will be sold
in the manner set forth in the Registration Statement and the Secondary Prospectus.
|
Antero
Midstream Corporation February 12, 2025 Page 3 |
Based on the foregoing, and
subject to the assumptions, qualifications, limitations, and exceptions set forth herein, we are of the opinion that:
1. When
(i) the board of directors (the “Board”) of the Company has taken all necessary corporate action to approve the
issuance and terms of any such Debt Securities; (ii) the terms of such Debt Securities, and of their issuance and sale, have been
duly established in conformity with the applicable Indenture so as not to violate any applicable law or result in a default under or breach
of any agreement or instrument binding upon the Company and so as to comply with any requirements or restrictions imposed by any court
or governmental body having jurisdiction over the Company; and (iii) such Debt Securities have been duly authenticated and delivered
in accordance with the applicable Indenture and issued and sold as contemplated in the Registration Statement and upon payment of the
consideration for such Debt Securities as provided for in the applicable definitive purchase, underwriting or similar agreement, such
Debt Securities will be legally issued and will constitute valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as such enforcement is subject to any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
2. With
respect to shares of Common Stock, when both (A) the Board has taken all necessary corporate action to approve the issuance of and
the terms of the offering of the shares of Common Stock and related matters and (B) certificates representing the shares of Common
Stock have been duly executed, countersigned, registered, and delivered (or non-certificated shares of Common Stock shall have been properly
issued), either (i) in accordance with the applicable definitive purchase, underwriting, or similar agreement approved by the Board
or such officers upon payment of the consideration therefor (not less than the par value of the Common Stock) provided for therein, or
(ii) upon conversion, exchange or exercise of any other Security in accordance with the terms of the Security or instrument governing
the Security providing for conversion, exchange or exercise as approved by the Board, for the consideration approved by the Board (not
less than the par value of the Common Stock) then the shares of Common Stock will be legally issued, fully paid, and nonassessable.
3. With
respect to shares of any series of Preferred Stock, when (a) the Board has taken all necessary corporate action to approve the issuance
and terms of the shares of the series, the terms of the offering thereof and related matters, including the adoption of a resolution establishing
and designating the series and fixing and determining the preferences, limitations and relative rights thereof and the filing of a statement
with respect to the series with the Secretary of State of the State of Delaware and (b) certificates representing the shares of the
series of Preferred Stock have been duly executed, countersigned, registered and delivered (or non-certificated shares of Preferred Stock
shall have been properly issued) either (i) in accordance with the applicable definitive purchase, underwriting or similar agreement
approved by the Board, then upon payment of the consideration therefor (not less than the par value of the Preferred Stock) provided for
therein; or (ii) upon conversion, exchange or exercise of any other Security in accordance with the terms of the Security or the
instrument governing the Security providing for the conversion, exchange or exercise as approved by the Board, for the consideration approved
by the Board (not less than the par value of the Preferred Stock), the shares of the series of Preferred Stock will be validly issued,
fully paid and non-assessable.
|
Antero
Midstream Corporation February 12, 2025 Page 4 |
4. With
respect to the Warrants, when (i) the Board has taken all necessary corporate action to approve the creation of and the issuance
and terms of the Warrants, the terms of the offering thereof, and related matters, (ii) the agreements relating to the Warrants have
been duly authorized and validly executed and delivered by the Company and the Warrant Agent appointed by the Company and (iii) the
Warrants or certificates representing the Warrants have been duly executed, countersigned, registered, and delivered in accordance with
the appropriate agreements relating to the Warrants and the applicable definitive purchase, underwriting, or similar agreement approved
by the Board or the Company’s officers either (a) upon payment of the consideration therefor provided for therein or (b) upon
conversion, exchange or exercise of any other Security in accordance with the terms of the Security or the instrument governing the Security
providing for the conversion, exchange or exercise as approved by the Board, for the consideration approved by the Board, the Warrants
will be legally issued and such Warrants will constitute valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as such enforcement is subject to any applicable bankruptcy, insolvency (including, without
limitation, all laws relating to fraudulent transfers), reorganization, moratorium and similar laws relating to or affecting creditors’
rights generally and to general equitable principles (regardless of whether enforcement is sought in a proceeding in equity or at law).
5. With
respect to the Depositary Shares, when (i) the Company has taken all necessary corporate action to approve the issuance and terms
of the Depositary Shares, the terms of the offering thereof and related matters, including the adoption of a Certificate of Designation
relating to the Preferred Stock underlying the Depositary Shares and the filing of the Certificate of Designation with the Secretary of
State of the State of Delaware, (ii) the depositary agreement or agreements relating to the Depositary Shares and the related depositary
receipts have been duly authorized and validly executed and delivered by the Company and the depositary appointed by the Company, (iii) the
shares of Preferred Stock underlying the Depositary Shares have been deposited with the depositary under the applicable depositary agreement
and (iv) the depositary receipts representing the Depositary Shares have been duly executed, countersigned, registered and delivered
in accordance with the appropriate depositary agreement approved by the Company, either (a) upon payment of the consideration therefor
provided for in the applicable definitive purchase, underwriting or similar agreement or (b) upon conversion, exchange or exercise
of any other Security in accordance with the terms of the Security or the instrument governing the Security providing for the conversion,
exchange or exercise as approved by the Company, for the consideration approved by the Company, the Depositary Shares will be legally
issued.
|
Antero
Midstream Corporation February 12, 2025 Page 5 |
6. The
shares of Resale Common Stock proposed to be sold by the Selling Stockholders have been, or in the case any shares of Resale Common Stock
issuable pursuant to outstanding Award Agreements, when issued in accordance with the terms thereof, will be, duly authorized and validly
issued and are fully paid and nonassessable.
We express no opinions concerning
(a) the validity or enforceability of any provisions contained in the Indentures that purport to waive or not give effect to rights
to notices, defenses, subrogation or other rights or benefits that cannot be effectively waived under applicable law or (b) the enforceability
of indemnification provisions to the extent they purport to relate to liabilities resulting from or based upon negligence or any violation
of federal or state securities or blue sky laws.
The foregoing opinions are
limited to the laws of the States of Delaware and New York, the Delaware General Corporation Law (including the applicable provisions
of the Delaware Constitution and the reported judicial decisions interpreting these laws) and the federal laws of the United States of
America, and we are expressing no opinion as to the effect of the laws of any other jurisdiction, domestic or foreign.
We hereby consent to the filing
of this opinion as an exhibit to the Registration Statement and to the use of our name in the Prospectuses forming a part of the Registration
Statement, each under the caption “Legal Matters.” In giving this consent, we do not admit that we are within the category
of persons whose consent is required under Section 7 of the Securities Act and the rules and regulations thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Vinson & Elkins L.L.P. |
Exhibit 23.1
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated February 12, 2025,
with respect to the consolidated financial statements of Antero Midstream Corporation, and the effectiveness of internal control
over financial reporting, incorporated herein by reference, and to the reference to our firm under the heading “Experts”
in the prospectus.
/s/ KPMG LLP
Denver, Colorado
February 12, 2025
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
¨
Computershare
Trust Company, National Association
(Exact name of trustee as specified in its charter)
National Banking Association
(Jurisdiction of incorporation or organization
if not a U.S. national bank) |
04-3401714
(I.R.S. Employer
Identification Number) |
| |
|
150 Royall Street, Canton, MA
(Address of principal executive offices) |
02021
(Zip Code) |
|
Law Department
Computershare Trust
Company, National Association
150 Royall Street,
Canton, MA
02021
(781) 575-2000
(Name, address and
telephone number of agent for service)
|
Antero Midstream Corporation
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
61-1748605
(I.R.S. Employer Identification Number) |
| |
|
|
1615 Wynkoop Street
Denver, Colorado
(Address of principal executive
offices) |
80202
(Zip Code) |
Senior Debt Securities
(Title of the indenture securities)
| Item 1. | General Information. Furnish the following information as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which it is subject. |
Comptroller of the Currency
340 Madison Avenue, 4th Floor
New York, NY 10017-2613
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise corporate
trust powers.
| Item 2. | Affiliations with the obligor. If the obligor is an affiliate of the trustee, describe such affiliation. |
None.
| Items 3-15. | No responses are included for Items 3-15 of this Form T-1 because,
to the best of the Trustee’s knowledge, neither the obligor nor any guarantor is in default under any Indenture for which the Trustee
acts as Trustee and the Trustee is not a foreign trustee as provided under Item 15. |
| Item 16. | List of exhibits. List below all exhibits filed as a part of this statement of eligibility. |
1. A
copy of the articles of association of the trustee. (See Exhibit 1 to Form T-1 filed with Registration Statement No. 333-200089).
2. A
copy of the certificate of authority of the trustee to commence business.
3. A
copy of the Comptroller of the Currency Certification of Fiduciary Powers for Computershare Trust Company, National Association.
4. A
copy of the existing bylaws of the trustee, as now in effect. (See Exhibit 4 to Form T-1 filed with Registration Statement No. 333-200089).
5. Not
applicable
6. The
consent of the Trustee required by Section 321(b) of the Act.
7. A
copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not
applicable
9. Not
applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Computershare Trust Company, National Association, a national banking association, organized and existing under the laws of
the United States, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized,
all in the City of St. Paul, and State of Minnesota, on the 12th day of February, 2025.
| |
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION |
| |
|
| |
By: |
/s/ Corey J. Dahlstrand |
| |
|
Name: |
Corey J. Dahlstrand |
| |
|
Title: |
Vice President |
EXHIBIT 2
A copy of the Comptroller of the Currency Certificate of Corporate
Existence for Computershare Trust Company, National Association, dated February 4, 2025.
EXHIBIT 3
A copy of the Comptroller of the Currency Certification of Fiduciary
Powers for Computershare Trust Company, National Association, dated February 4, 2025.
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321
(b) of the Trust Indenture Act of 1939, and in connection with the proposed issue of debt securities, Computershare Trust Company,
National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon request therefore.
| |
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION |
| |
|
| |
By: |
/s/ Corey J. Dahlstrand |
| |
|
Title: Vice President |
| |
|
|
| |
| February 12, 2025 |
EXHIBIT 7
Consolidated
Report of Condition of
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
150 Royall Street, Canton, MA 02021
at the close of business December 31, 2024.
| ASSETS | |
Dollar
Amounts In Thousands | |
| Cash and balances due from depository
institutions: | |
| | |
| Noninterest-bearing
balances and currency and coin | |
| 2,104 | |
| Interest-bearing
balances | |
| 361,932 | |
| Securities: | |
| | |
| Held-to-maturity
securities | |
| -0- | |
| Available-for-sale
securities | |
| -0- | |
| Federal
funds sold and securities purchased under agreements to resell: | |
| | |
| Federal
funds sold in domestic offices | |
| -0- | |
| Securities
purchased under agreements to resell | |
| -0- | |
| Loans
and lease financing receivables: | |
| | |
| Loans
and leases held for sale | |
| -0- | |
| Loans
and leases, net of unearned income | |
| -0- | |
| LESS:
Allowance for loan and lease losses | |
| -0- | |
| Loans
and leases, net of unearned income and allowance | |
| -0- | |
| Trading assets | |
| -0- | |
| Premises and fixed assets (including
capitalized leases) | |
| 6,464 | |
| Other real estate owned | |
| -0- | |
| Investments in unconsolidated
subsidiaries and associated companies | |
| -0- | |
| Direct and indirect investments
in real estate ventures | |
| -0- | |
| Intangible assets: | |
| | |
| Goodwill | |
| 134,206 | |
| Other
intangible assets | |
| 437,126 | |
| Other assets | |
| 149,658 | |
| Total assets | |
| 1,091,490 | |
| LIABILITIES | |
| | |
| Deposits: | |
| | |
| In domestic
offices | |
| -0- | |
| Noninterest-bearing | |
| -0- | |
| Interest-bearing | |
| -0- | |
| Federal funds purchased and
securities sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic
offices | |
| -0- | |
| Securities sold under agreements
to repurchase | |
| -0- | |
| Trading liabilities | |
| -0- | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness
and obligations under capitalized leases) | |
| -0- | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| -0- | |
| Other liabilities | |
| 150,750 | |
| Total liabilities | |
| 150,750 | |
| EQUITY CAPITAL | |
| | |
| Perpetual preferred stock and
related surplus | |
| 0 | |
| Common stock | |
| 500 | |
| Surplus (exclude all surplus
related to preferred stock) | |
| 850,876 | |
| Retained earnings | |
| 89,364 | |
| Accumulated other comprehensive
income | |
| -0- | |
| Other equity capital components | |
| -0- | |
| Total bank equity capital | |
| 940,740 | |
| Noncontrolling (minority) interests
in consolidated subsidiaries | |
| -0- | |
| Total equity capital | |
| 940,740 | |
| Total liabilities and equity
capital | |
| 1,091,490 | |
I, Greg Brandt, Assistant Controller of the above
named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| |
/s/ Greg Brandt |
| |
Greg Brandt |
| |
Assistant Controller |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A
TRUSTEE PURSUANT TO SECTION 305(b)(2)
¨
Computershare
Trust Company, National Association
(Exact name of trustee as specified in its charter)
National Banking Association
(Jurisdiction of incorporation or organization
if not a U.S. national bank) |
04-3401714
(I.R.S. Employer
Identification Number) |
| |
|
150 Royall Street, Canton, MA
(Address of principal executive offices) |
02021
(Zip Code) |
Law Department
Computershare
Trust Company, National Association
150 Royall Street,
Canton, MA
02021
(781) 575-2000
(Name, address
and telephone number of agent for service)
|
Antero Midstream Corporation
(Exact name of obligor as specified in its charter)
Delaware
(State or other jurisdiction of
incorporation or organization) |
61-1748605
(I.R.S. Employer Identification Number) |
1615 Wynkoop Street
Denver, Colorado
(Address of principal
executive offices) |
80202
(Zip Code)
|
Subordinated Debt Securities
(Title of the indenture securities)
| Item 1. | General Information. Furnish the following information
as to the trustee: |
| (a) | Name and address of each examining or supervising authority to which
it is subject. |
Comptroller of the Currency
340 Madison Avenue, 4th Floor
New York, NY 10017-2613
| (b) | Whether it is authorized to exercise corporate trust powers. |
The trustee is authorized to exercise
corporate trust powers.
| Item 2. | Affiliations with the obligor. If the obligor is an affiliate
of the trustee, describe such affiliation. |
None.
| Items 3-15 | No
responses are included for Items 3-15 of this Form T-1 because, to the
best of the Trustee’s knowledge, neither the obligor nor any guarantor is in default
under any Indenture for which the Trustee acts as Trustee and the Trustee is not a foreign
trustee as provided under Item 15. |
| Item 16. | List of exhibits. List below all exhibits filed as a
part of this statement of eligibility. |
1. A
copy of the articles of association of the trustee. (See Exhibit 1 to Form T-1 filed with Registration Statement No. 333-200089).
2. A
copy of the certificate of authority of the trustee to commence business.
3. A
copy of the Comptroller of the Currency Certification of Fiduciary Powers for Computershare Trust Company, National Association.
4. A
copy of the existing bylaws of the trustee, as now in effect. (See Exhibit 4 to Form T-1 filed with Registration Statement
No. 333-200089).
5. Not
applicable
6. The
consent of the Trustee required by Section 321(b) of the Act.
7. A
copy of the latest report of condition of the trustee published pursuant to law or the requirements of its supervising or examining authority.
8. Not
applicable
9. Not
applicable
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, Computershare Trust Company, National Association, a national banking association, organized and existing under the laws of
the United States, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized,
all in the City of St. Paul, and State of Minnesota, on the 12th day of February, 2025.
| |
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION |
| |
|
| |
By: |
/s/ Corey J. Dahlstrand |
| |
|
Name: |
Corey J. Dahlstrand |
| |
|
Title: |
Vice President |
EXHIBIT 2
A copy of the Comptroller of the Currency Certificate
of Corporate Existence for Computershare Trust Company, National Association, dated February 4, 2025.
EXHIBIT 3
A copy of the Comptroller of the Currency Certification of Fiduciary
Powers for Computershare Trust Company, National Association, dated February 4, 2025.
EXHIBIT 6
CONSENT OF THE TRUSTEE
Pursuant to the requirements of Section 321
(b) of the Trust Indenture Act of 1939, and in connection with the proposed issue of debt securities, Computershare Trust Company,
National Association hereby consents that reports of examinations by Federal, State, Territorial or District authorities may be furnished
by such authorities to the Securities and Exchange Commission upon request therefore.
| |
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION |
| |
|
| |
By: |
/s/ Corey J. Dahlstrand |
| |
|
Title: Vice president |
| |
| February 12, 2025 |
EXHIBIT 7
Consolidated
Report of Condition of
COMPUTERSHARE TRUST COMPANY, NATIONAL ASSOCIATION
150 Royall Street, Canton, MA 02021
at the close of business December 31, 2024.
| ASSETS | |
Dollar
Amounts In Thousands | |
| Cash and balances due from depository
institutions: | |
| | |
| Noninterest-bearing
balances and currency and coin | |
| 2,104 | |
| Interest-bearing
balances | |
| 361,932 | |
| Securities: | |
| | |
| Held-to-maturity
securities | |
| -0- | |
| Available-for-sale
securities | |
| -0- | |
| Federal
funds sold and securities purchased under agreements to resell: | |
| | |
| Federal
funds sold in domestic offices | |
| -0- | |
| Securities
purchased under agreements to resell | |
| -0- | |
| Loans
and lease financing receivables: | |
| | |
| Loans
and leases held for sale | |
| -0- | |
| Loans
and leases, net of unearned income | |
| -0- | |
| LESS:
Allowance for loan and lease losses | |
| -0- | |
| Loans
and leases, net of unearned income and allowance | |
| -0- | |
| Trading assets | |
| -0- | |
| Premises and fixed assets (including
capitalized leases) | |
| 6,464 | |
| Other real estate owned | |
| -0- | |
| Investments in unconsolidated
subsidiaries and associated companies | |
| -0- | |
| Direct and indirect investments
in real estate ventures | |
| -0- | |
| Intangible assets: | |
| | |
| Goodwill | |
| 134,206 | |
| Other
intangible assets | |
| 437,126 | |
| Other assets | |
| 149,658 | |
| Total assets | |
| 1,091,490 | |
| LIABILITIES | |
| | |
| Deposits: | |
| | |
| In domestic
offices | |
| -0- | |
| Noninterest-bearing | |
| -0- | |
| Interest-bearing | |
| -0- | |
| Federal funds purchased and
securities sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic
offices | |
| -0- | |
| Securities sold under agreements
to repurchase | |
| -0- | |
| Trading liabilities | |
| -0- | |
| Other borrowed money: | |
| | |
| (includes mortgage indebtedness
and obligations under capitalized leases) | |
| -0- | |
| Not applicable | |
| | |
| Not applicable | |
| | |
| Subordinated notes and debentures | |
| -0- | |
| Other liabilities | |
| 150,750 | |
| Total liabilities | |
| 150,750 | |
| EQUITY CAPITAL | |
| | |
| Perpetual preferred stock and
related surplus | |
| 0 | |
| Common stock | |
| 500 | |
| Surplus (exclude all surplus
related to preferred stock) | |
| 850,876 | |
| Retained earnings | |
| 89,364 | |
| Accumulated other comprehensive
income | |
| -0- | |
| Other equity capital components | |
| -0- | |
| Total bank equity capital | |
| 940,740 | |
| Noncontrolling (minority) interests
in consolidated subsidiaries | |
| -0- | |
| Total equity capital | |
| 940,740 | |
| Total liabilities and equity
capital | |
| 1,091,490 | |
I, Greg Brandt, Assistant Controller of the above
named bank do hereby declare that this Report of Condition is true and correct to the best of my knowledge and belief.
| |
/s/ Greg Brandt |
| |
Greg Brandt |
| |
Assistant Controller |
S-3
S-3ASR
EX-FILING FEES
0001623925
Antero Midstream Corp
0001623925
2025-02-11
2025-02-11
0001623925
1
2025-02-11
2025-02-11
0001623925
2
2025-02-11
2025-02-11
0001623925
3
2025-02-11
2025-02-11
0001623925
4
2025-02-11
2025-02-11
0001623925
5
2025-02-11
2025-02-11
0001623925
6
2025-02-11
2025-02-11
iso4217:USD
xbrli:pure
xbrli:shares
|
Calculation of Filing Fee Tables
|
|
S-3
|
|
Antero Midstream Corp
|
|
Table 1: Newly Registered and Carry Forward Securities
|
|
|
|
Security Type
|
Security Class Title
|
Fee Calculation or Carry Forward Rule
|
Amount Registered
|
Proposed Maximum Offering Price Per Unit
|
Maximum Aggregate Offering Price
|
Fee Rate
|
Amount of Registration Fee
|
Carry Forward Form Type
|
Carry Forward File Number
|
Carry Forward Initial Effective Date
|
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward
|
|
Newly Registered Securities
|
|
Fees to be Paid
|
1
|
Equity
|
Common Stock
|
457(r)
|
|
$
0.00
|
$
0.00
|
0.0001531
|
$
0.00
|
|
|
|
|
|
Fees to be Paid
|
2
|
Equity
|
Preferred Stock
|
457(r)
|
|
$
0.00
|
$
0.00
|
0.0001531
|
$
0.00
|
|
|
|
|
|
Fees to be Paid
|
3
|
Debt
|
Debt Securities
|
457(r)
|
|
$
0.00
|
$
0.00
|
0.0001531
|
$
0.00
|
|
|
|
|
|
Fees to be Paid
|
4
|
Other
|
Warrants
|
457(r)
|
|
$
0.00
|
$
0.00
|
0.0001531
|
$
0.00
|
|
|
|
|
|
Fees to be Paid
|
5
|
Other
|
Depositary Shares
|
457(r)
|
|
$
0.00
|
$
0.00
|
0.0001531
|
$
0.00
|
|
|
|
|
|
Fees Previously Paid
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carry Forward Securities
|
|
Carry Forward Securities
|
6
|
Equity
|
Common Stock
|
415(a)(6)
|
144,033,190
|
|
|
|
|
S-3
|
333-263651
|
03/17/2022
|
$
132,247.00
|
|
|
|
|
Total Offering Amounts:
|
|
$
0.00
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fees Previously Paid:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Total Fee Offsets:
|
|
|
|
$
0.00
|
|
|
|
|
|
|
|
|
Net Fee Due:
|
|
|
|
$
0.00
|
|
|
|
|
|
1
|
1.a. In reliance on Rules 456(b) and 457(r) under the Securities Act of 1933, as amended (the "Securities Act"), the registrant is deferring payment of the registration fee for all securities that may be offered in primary offerings by the registrant.
1.b. There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities and such indeterminate number of warrants and depositary shares as may from time to time be offered hereunder at indeterminate prices. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock, preferred stock and amount of debt securities of Antero Midstream Corporation (the "Registrant") as may be issued upon conversion of or exchange for preferred stock or debt securities, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. Separate consideration may or may not be received for any of these securities.
1.c. The proposed maximum aggregate offering price will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
|
|
|
|
2
|
See offering note 1.
|
|
|
|
3
|
See offering note 1.
|
|
|
|
4
|
See offering note 1.
|
|
|
|
5
|
See offering note 1.
|
|
|
|
6
|
6.a. Pursuant to Rule 416(a) under the Securities Act, the amount of common stock being registered on behalf of the selling stockholders shall be adjusted to include any additional common stock that may become issuable as a result of any distribution, split, combination or similar transaction.
6.b. In accordance with Rule 415(a)(6) under the Securities Act, this Registration Statement carries over, as of the date of filing of this Registration Statement, 144,033,190 shares of common stock previously registered under the Registrant's registration statement on Form S-3 (File No. 333-263651) (which we refer to as the "Prior Registration Statement"), which was filed with the SEC and became automatically effective on March 17, 2022, which shares remain unsold under the Prior Registration Statement (which we refer to as the "Previously Registered Unsold Securities"). In connection with the registration of the offering and sale of the Previously Registered Unsold Securities under the Prior Registration Statement, the Registrant previously paid the applicable registration fee (calculated at the filing fee rate in effect at the time of the filing of the Prior Registration Statement) (which we refer to as the "Previously Paid Registration Fee"), which will continue to be applied to the Previously Registered Unsold Securities, and the Registrant hereby offsets any registration fee that may be due under this Registration Statement by the amount of the Previously Paid Registration Fee relating to the Previously Registered Unsold Securities. Accordingly, no registration fee is due upon the filing of this Registration Statement.
6.c. The proposed maximum offering price per share of common stock will be determined by the selling stockholders from time to time in connection with, and at the time of, the sale by a selling stockholder of such securities.
|
|
|
v3.25.0.1
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v3.25.0.1
Offerings
|
Feb. 11, 2025
USD ($)
shares
|
| Offering: 1 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Stock
|
| Proposed Maximum Offering Price per Unit |
0.00
|
| Maximum Aggregate Offering Price |
$ 0.00
|
| Fee Rate |
0.01531%
|
| Amount of Registration Fee |
$ 0.00
|
| Offering Note |
1.a. In reliance on Rules 456(b) and 457(r) under the Securities Act of 1933, as amended (the "Securities Act"), the registrant is deferring payment of the registration fee for all securities that may be offered in primary offerings by the registrant.
1.b. There are being registered hereunder such indeterminate number of shares of common stock and preferred stock, such indeterminate principal amount of debt securities and such indeterminate number of warrants and depositary shares as may from time to time be offered hereunder at indeterminate prices. Any securities registered hereunder may be sold separately or together with other securities registered hereunder. The securities registered also include such indeterminate number of shares of common stock, preferred stock and amount of debt securities of Antero Midstream Corporation (the "Registrant") as may be issued upon conversion of or exchange for preferred stock or debt securities, upon exercise of warrants or pursuant to the anti-dilution provisions of any such securities. Separate consideration may or may not be received for any of these securities.
1.c. The proposed maximum aggregate offering price will be determined from time to time by the Registrant in connection with the issuance by the Registrant of the securities registered hereunder and is not specified as to each class of security pursuant to General Instruction II.D. of Form S-3 under the Securities Act.
|
| Offering: 2 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Preferred Stock
|
| Proposed Maximum Offering Price per Unit |
0.00
|
| Maximum Aggregate Offering Price |
$ 0.00
|
| Fee Rate |
0.01531%
|
| Amount of Registration Fee |
$ 0.00
|
| Offering Note |
See offering note 1.
|
| Offering: 3 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Debt
|
| Security Class Title |
Debt Securities
|
| Proposed Maximum Offering Price per Unit |
0.00
|
| Maximum Aggregate Offering Price |
$ 0.00
|
| Fee Rate |
0.01531%
|
| Amount of Registration Fee |
$ 0.00
|
| Offering Note |
See offering note 1.
|
| Offering: 4 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Warrants
|
| Proposed Maximum Offering Price per Unit |
0.00
|
| Maximum Aggregate Offering Price |
$ 0.00
|
| Fee Rate |
0.01531%
|
| Amount of Registration Fee |
$ 0.00
|
| Offering Note |
See offering note 1.
|
| Offering: 5 |
|
| Offering: |
|
| Fee Previously Paid |
false
|
| Rule 457(r) |
true
|
| Security Type |
Other
|
| Security Class Title |
Depositary Shares
|
| Proposed Maximum Offering Price per Unit |
0.00
|
| Maximum Aggregate Offering Price |
$ 0.00
|
| Fee Rate |
0.01531%
|
| Amount of Registration Fee |
$ 0.00
|
| Offering Note |
See offering note 1.
|
| Offering: 6 |
|
| Offering: |
|
| Rule 415(a)(6) |
true
|
| Security Type |
Equity
|
| Security Class Title |
Common Stock
|
| Amount Registered | shares |
144,033,190
|
| Carry Forward Form Type |
S-3
|
| Carry Forward File Number |
333-263651
|
| Carry Forward Initial Effective Date |
Mar. 17, 2022
|
| Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward |
$ 132,247.00
|
| Offering Note |
6.a. Pursuant to Rule 416(a) under the Securities Act, the amount of common stock being registered on behalf of the selling stockholders shall be adjusted to include any additional common stock that may become issuable as a result of any distribution, split, combination or similar transaction.
6.b. In accordance with Rule 415(a)(6) under the Securities Act, this Registration Statement carries over, as of the date of filing of this Registration Statement, 144,033,190 shares of common stock previously registered under the Registrant's registration statement on Form S-3 (File No. 333-263651) (which we refer to as the "Prior Registration Statement"), which was filed with the SEC and became automatically effective on March 17, 2022, which shares remain unsold under the Prior Registration Statement (which we refer to as the "Previously Registered Unsold Securities"). In connection with the registration of the offering and sale of the Previously Registered Unsold Securities under the Prior Registration Statement, the Registrant previously paid the applicable registration fee (calculated at the filing fee rate in effect at the time of the filing of the Prior Registration Statement) (which we refer to as the "Previously Paid Registration Fee"), which will continue to be applied to the Previously Registered Unsold Securities, and the Registrant hereby offsets any registration fee that may be due under this Registration Statement by the amount of the Previously Paid Registration Fee relating to the Previously Registered Unsold Securities. Accordingly, no registration fee is due upon the filing of this Registration Statement.
6.c. The proposed maximum offering price per share of common stock will be determined by the selling stockholders from time to time in connection with, and at the time of, the sale by a selling stockholder of such securities.
|
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