As filed with the Securities and Exchange Commission on August 8, 2023
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Clearway Energy, Inc.
(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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46-1777204
(I.R.S. Employer
Identification No.)
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300 Carnegie Center, Suite 300
Princeton, New Jersey 08540
(609) 608-1525
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Kevin P. Malcarney
Executive Vice President, General Counsel and Corporate Secretary
Clearway Energy, Inc.
300 Carnegie Center, Suite 300
Princeton, New Jersey 08540
(609) 608-1525
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copy to:
M. Preston Bernhisel
Baker Botts L.L.P.
2001 Ross Avenue, Suite 900
Dallas, Texas 75201-2980
Telephone: (214) 953-6783
Facsimile: (214) 661-4783
Approximate date of commencement of proposed sale to the public:
From time to time on or after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
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. (Check one):
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Large accelerated filer ☒
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Accelerated filer ☐
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Non-accelerated filer ☐
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Smaller reporting company ☐
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Emerging growth company ☐
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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 the Securities Act. ☐
PROSPECTUS
Clearway Energy, Inc.
Class A Common Stock
Class C Common Stock
Debt Securities
Preferred Stock
Clearway Energy, Inc., from time to time, may offer to sell Class A common stock, Class C common stock, senior or subordinated debt securities, and preferred stock. The debt securities and preferred stock may be convertible into or exercisable or exchangeable for our Class A common stock, our Class C common stock, our preferred stock, our other securities or the debt or equity securities of one or more other entities. This prospectus describes some of the general terms that may apply to these securities. The specific terms of any securities to be offered will be described in a supplement to this prospectus. The prospectus supplements may also add, update, or change information contained in this prospectus.
We may offer and sell these securities to or through one or more underwriters, dealers and agents, or directly to purchasers, or through a combination of these methods, on a continuous or delayed basis.
Our Class A common stock is traded on the New York Stock Exchange under the symbol “CWEN.A.” Our Class C common stock is traded on the New York Stock Exchange under the symbol “CWEN.”
Investing in our securities involves risks. You should carefully consider the risks described under “Risk Factors” on page 2 of this prospectus, as well as the other information contained or incorporated by reference in this prospectus and the related prospectus supplement, before making a decision to invest in our securities.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is August 8, 2023.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is a part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under this shelf registration process, we may sell any combination of the securities described in this prospectus in one or more offerings from time to time. This prospectus provides you with a general description of us and the securities we may offer under this prospectus. Each time we sell securities under this shelf registration, we will provide a prospectus supplement that will contain specific information about the terms of that offering. The prospectus supplement may also add, update or change information contained in this prospectus. Therefore, if there is any inconsistency between the information in this prospectus and the prospectus supplement, you should rely on the information in the prospectus supplement. You should read carefully both this prospectus and any prospectus supplement, together with additional information described under the heading “Where You Can Find More Information.”
We have not authorized any dealer, salesman or other person to give any information or to make any representation other than those contained or incorporated by reference in this prospectus and any related prospectus supplement. You must not rely upon any information or representation not contained or incorporated by reference in this prospectus or the related prospectus supplement. This prospectus and any related prospectus supplement do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any related prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information in this prospectus, any prospectus supplement, or any document incorporated by reference is accurate as of any date other than the date of the document in which such information is contained, or such other date referred to in such document, regardless of the time of any sale or issuance of a security.
Unless the context otherwise requires or as otherwise expressly stated, references in this prospectus to “Clearway Energy,” “the Company,” “we,” “us” and “our” and similar terms refer to Clearway Energy, Inc. and its direct and indirect subsidiaries on a consolidated basis. References in this prospectus to “Clearway Inc.” refer to Clearway Energy, Inc. and not any of its subsidiaries, unless the context otherwise requires. References to our “common stock” or our “preferred stock” refer to the common stock or preferred stock of Clearway Energy, Inc. and not any of its subsidiaries, unless the context otherwise requires.
FORWARD-LOOKING STATEMENTS
This prospectus, any related prospectus supplement, and the documents incorporated by reference herein and therein, include forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”), and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), which involve risks and uncertainties. All statements, other than statements of historical facts, that are included in or incorporated by reference into this prospectus, or made in presentations, in response to questions or otherwise, that address activities, events or developments that we expect or anticipate to occur in the future, including such matters as projections, capital allocation, future capital expenditures, business strategy, competitive strengths, goals, future acquisitions or dispositions, development or operation of power generation assets, market and industry developments and the growth of our business and operations (often, but not always, through the use of words or phrases such as “believes,” “plans,” “intends,” “will likely result,” “are expected to,” “will continue,” “is anticipated,” “estimated,” “projection,” “target,” “goal,” “objective,” “outlook” and similar expressions), are forward-looking statements. These factors, risks and uncertainties include, but are not limited to, the following:
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Our ability to maintain and grow our quarterly dividend;
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Potential risks related to our relationships with Global Infrastructure Investors III, LLC (“GIP”), TotalEnergies SE (“TotalEnergies”) and Clearway Energy Group LLC (“CEG”);
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Our ability to successfully identify, evaluate and consummate acquisitions from, and dispositions to, third parties;
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Our ability to acquire assets from CEG;
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Our ability to borrow additional funds and access capital markets, as well as our substantial indebtedness and the possibility that we may incur additional indebtedness going forward;
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Changes in law, including judicial decisions;
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Hazards customary to the power production industry and power generation operations such as fuel and electricity price volatility, unusual weather conditions (including wind and solar conditions), catastrophic weather-related or other damage to facilities, unscheduled generation outages, maintenance or repairs, unanticipated changes to fuel supply costs or availability due to higher demand, shortages, transportation problems or other developments, environmental incidents, or electric transmission or gas pipeline system constraints and the possibility that we may not have adequate insurance to cover losses as a result of such hazards;
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Our ability to operate our businesses efficiently, manage maintenance capital expenditures and costs effectively, and generate earnings and cash flows from our asset-based businesses in relation to our debt and other obligations;
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The willingness and ability of counterparties to our offtake agreements to fulfill their obligations under such agreements;
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Our ability to enter into contracts to sell power and procure fuel on acceptable terms and prices as current offtake agreements expire;
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Government regulation, including compliance with regulatory requirements and changes in market rules, rates, tariffs and environmental laws;
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Operating and financial restrictions placed on us that are contained in the project-level debt facilities and other agreements of certain subsidiaries and project-level subsidiaries generally, in the Clearway Energy Operating LLC (“Clearway Operating LLC”) amended and restated revolving credit facility and in the indentures governing our outstanding senior unsecured notes; and
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Cyber terrorism and inadequate cybersecurity, or the occurrence of a catastrophic loss and the possibility that we may not have adequate insurance to cover losses resulting from such hazards or the inability of our insurers to provide coverage.
Any forward-looking statement speaks only as of the date on which it is made, and except as may be required by applicable law, we undertake no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise. The foregoing review of factors that could cause our actual results to differ materially from those contemplated in any forward-looking statements included in this prospectus or incorporated herein by reference should not be construed as exhaustive.
SUMMARY
The following summary highlights selected information contained elsewhere in this prospectus. Because it is a summary, it does not contain all of the information that you should consider before investing in our securities. You should read the entire prospectus carefully, including the “Risk Factors” section and the other documents we refer to and incorporate by reference, in order to understand this offering fully. In particular, we incorporate important business and financial information into this prospectus by reference.
Our Company
We are a publicly-traded energy infrastructure investor with a focus on investments in clean energy and owner of modern, sustainable and long-term contracted assets across North America. We are sponsored by GIP and TotalEnergies through the portfolio company, CEG, which is equally owned by GIP and TotalEnergies. GIP is an independent infrastructure fund manager that makes equity and debt investments in infrastructure assets and businesses. TotalEnergies is a global multi-energy company.
We were incorporated as a Delaware corporation on December 20, 2012. Our Class A common stock is listed on the New York Stock Exchange under the symbol “CWEN.A,” and our Class C common stock is listed on the New York Stock Exchange under the symbol “CWEN.” Our headquarters and principal executive offices are located at 300 Carnegie Center, Suite 300, Princeton, New Jersey 08540. Our telephone number is (609) 608-1525. Our website is www.clearwayenergy.com. Information on our website is not part of this prospectus and is not incorporated into this prospectus by reference.
You can get more information regarding our business by reading our Annual Report on Form 10-K for the fiscal year ended December 31, 2022, our Quarterly Reports on Form 10-Q for the quarterly periods ended March 31, 2023 and June 30, 2023, and the other reports we file with the SEC. See “Where You Can Find More Information.”
RISK FACTORS
Our business is subject to uncertainties and risks. You should carefully consider and evaluate all of the information included and incorporated by reference in this prospectus, including the risk factors incorporated by reference from our most recent Annual Report on Form 10-K, as updated by our Quarterly Reports on Form 10-Q and other filings we make with the SEC, and in any prospectus supplement. It is possible that our business, financial condition, liquidity or results of operations could be materially adversely affected by any of these risks. In that case, the trading price of our common stock or debt securities could decline and you could lose all or part of your investment. When we offer and sell any securities pursuant to a prospectus supplement, we may include additional risk factors relevant to such securities in the prospectus supplement.
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we expect to use the net proceeds from the sale of securities offered thereby for general corporate purposes, which may include, among other things:
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repayment or refinancing of all or a portion of our indebtedness outstanding at the time;
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funding working capital, capital expenditures or acquisitions.
Pending any specific application, we may initially invest funds in short-term marketable securities or apply them to the reduction of short-term indebtedness.
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock is a summary and does not purport to be complete. It is subject to and qualified in its entirety by reference to our Amended and Restated Certificate of Incorporation (“Certificate of Incorporation”) and our Fourth Amended and Restated Bylaws (“Bylaws”). The following description may not contain all of the information that is important to you. To understand them fully, you should read our Certificate of Incorporation, our Bylaws and the applicable provisions of the Delaware General Corporation Law (the “DGCL”).
Authorized Capitalization
Our authorized capital stock consists, as of June 30, 2023, of:
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500,000,000 shares of Class A common stock, par value $0.01 per share (“Class A common stock”), of which 34,613,853 shares are issued and outstanding;
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500,000,000 shares of Class B common stock, par value $0.01 per share (“Class B common stock”), of which 42,738,750 shares are issued and outstanding;
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1,000,000,000 shares of Class C common stock, par value $0.01 per share (“Class C common stock”), of which 82,385,884 shares are issued and outstanding;
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1,000,000,000 shares of Class D common stock, par value $0.01 per share (“Class D common stock”), of which 42,336,750 shares are issued and outstanding; and
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10,000,000 shares of preferred stock, par value $0.01 per share, none of which are issued and outstanding.
In addition, as of June 30, 2023, (i) an aggregate of 2,875,632 shares of our Class A common stock and Class C common stock are reserved for issuance under our equity-based compensation plans, (ii) an aggregate of 42,738,750 shares of our Class A common stock are reserved for issuance upon the exchange of Class B units of Clearway Energy LLC (“Clearway LLC”), a direct subsidiary of Clearway Inc., and (iii) an aggregate of 42,336,750 shares of our Class C common stock are reserved for issuance upon the exchange of Class D units of Clearway LLC. Unless our Board of Directors (the “Board of Directors”) determines otherwise, we will issue all shares of our capital stock in uncertificated form.
Class A Common Stock
Voting Rights
Each share of Class A common stock entitles the holder to one vote with respect to each matter presented to our stockholders on which the holders of Class A common stock are entitled to vote. Holders of shares of our Class A common stock, Class B common stock, Class C common stock and Class D common stock vote together as a single class on all matters presented to our stockholders for their vote or approval, except as otherwise required by applicable law or the listing requirements of any exchange on which shares of our common stock are listed. Holders of our Class A common stock do not have cumulative voting rights. Except in respect of matters relating to the election and removal of directors on our Board of Directors and as otherwise provided in our Certificate of Incorporation or required by law, all matters to be voted on by holders of our Class A common stock, Class B common stock, Class C common stock and Class D common stock must be approved by a majority, on a combined basis, of such shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors, all matters to be voted on by our stockholders must be approved by a plurality of the votes entitled to be cast by all shares of our common stock on a combined basis.
Dividend Rights
Subject to preferences that may be applicable to any then outstanding preferred stock, the holders of our outstanding shares of Class A common stock are entitled to receive dividends, if any, as may be declared from time to time by our Board of Directors out of legally available funds. Dividends upon shares of our
Class A common stock may be declared by our Board of Directors at any regular or special meeting, and may be paid in cash, in property or in shares of capital stock. The holders of shares of Class A common stock and Class C common stock will share ratably in all dividends as may be declared by our Board of Directors in respect of our outstanding common stock. Before payment of any dividend, there may be set aside out of any of our funds available for dividends, such sums as the Board of Directors deems proper as reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any of our property or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Furthermore, because we are a holding company, our ability to pay dividends on our Class A common stock is limited by restrictions on the ability of our subsidiaries to pay dividends or make other distributions to us, including restrictions under the terms of the agreements governing our indebtedness.
Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, holders of shares of our Class A common stock would be entitled to share ratably in our assets that are legally available for distribution to stockholders after payment of our debts and other liabilities and the liquidation preference of any of our outstanding shares of preferred stock, subject only to the right of the holders of shares of our Class B common stock and Class D common stock to receive payment for the par value of their shares in connection with our liquidation.
Other Rights
Holders of shares of our Class A common stock have no preemptive, conversion or other rights to subscribe for additional shares. All outstanding shares are, and all shares offered by this prospectus will be, when sold, validly issued, fully paid and nonassessable. The rights, preferences and privileges of the holders of shares of our Class A common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Listing
Our Class A common stock is listed on the NYSE under the symbol “CWEN.A.”
Transfer Agent and Registrar
The transfer agent and registrar for our Class A common stock is Computershare Shareowner Services, LLC.
Class B Common Stock
Voting Rights
Each share of Class B common stock entitles the holder to one vote with respect to each matter presented to our stockholders on which the holders of Class B common stock are entitled to vote. Holders of shares of our Class A common stock, Class B common stock, Class C common stock and Class D common stock vote together as a single class on all matters presented to our stockholders for their vote or approval, except as otherwise required by applicable law or the listing requirements of any exchange on which shares of our common stock are listed. Holders of shares of our Class B common stock do not have cumulative voting rights. Except in respect of matters relating to the election and removal of directors on our Board of Directors and as otherwise provided in our Certificate of Incorporation or required by law, all matters to be voted on by holders of our Class A common stock, Class B common stock, Class C common stock and Class D common stock must be approved by a majority, on a combined basis, of such shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors, all matters to be voted on by our stockholders must be approved by a plurality of the votes entitled to be cast by all shares of our common stock on a combined basis.
Dividend and Liquidation Rights
Holders of shares of our Class B common stock do not have any right to receive dividends, other than dividends payable solely in shares of Class B common stock in the event of payment of a dividend in shares
of common stock payable to holders of our Class A common stock and Class C common stock, or to receive a distribution upon our liquidation or winding up except for their right to receive payment for the par value of their shares of Class B common stock in connection with our liquidation.
Mandatory Redemption
Shares of Class B common stock are subject to redemption at a price per share equal to par value upon the conversion of Class B units of Clearway Energy LLC to Class A units of Clearway LLC. Shares of Class B common stock so redeemed are automatically cancelled and are not available to be reissued.
Class C Common Stock
Voting Rights
Each share of Class C common stock entitles the holder to 1/100th of one vote with respect to each matter presented to our stockholders on which the holders of Class C common stock are entitled to vote. Holders of shares of our Class A common stock, Class B common stock, Class C common stock and Class D common stock vote together as a single class on all matters presented to our stockholders for their vote or approval, except as otherwise required by applicable law or the listing requirements of any exchange on which shares of our common stock are listed. Holders of shares of our Class C common stock do not have cumulative voting rights. Except in respect of matters relating to the election and removal of directors on our Board of Directors and as otherwise provided in our Certificate of Incorporation or required by law, all matters to be voted on by holders of shares of our Class A common stock, Class B common stock, Class C common stock and Class D common stock must be approved by a majority, on a combined basis, of such shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors, all matters to be voted on by our stockholders must be approved by a plurality of the votes entitled to be cast by all shares of our common stock on a combined basis.
Dividend Rights
Subject to preferences that may be applicable to any then outstanding preferred stock, the holders of our outstanding shares of Class C common stock are entitled to receive dividends, if any, as may be declared from time to time by our Board of Directors out of legally available funds. Dividends upon shares of our Class C common stock may be declared by our Board of Directors at any regular or special meeting, and may be paid in cash, in property or in shares of capital stock. The holders of shares of Class C common stock and Class A common stock will share ratably in all dividends as may be declared by our Board of Directors in respect of our outstanding common stock. Before payment of any dividend, there may be set aside out of any of our funds available for dividends, such sums as the Board of Directors deems proper as reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any of our property or for any proper purpose, and the Board of Directors may modify or abolish any such reserve. Furthermore, because we are a holding company, our ability to pay dividends on shares of our Class C common stock is limited by restrictions on the ability of our subsidiaries to pay dividends or make other distributions to us, including restrictions under the terms of the agreements governing our indebtedness.
Liquidation Rights
In the event of any voluntary or involuntary liquidation, dissolution or winding up of our affairs, holders of shares of our Class C common stock would be entitled to share ratably in our assets that are legally available for distribution to stockholders after payment of our debts and other liabilities and the liquidation preference of any of our outstanding shares of preferred stock, subject only to the right of the holders of shares of our Class B common stock and Class D common stock to receive payment for the par value of their shares in connection with our liquidation.
Other Rights
Holders of shares of our Class C common stock have no preemptive, conversion or other rights to subscribe for additional shares. All outstanding shares are, and all shares offered by this prospectus will be, when issued, validly issued, fully paid and nonassessable. The rights, preferences and privileges of the holders
of shares of our Class C common stock are subject to, and may be adversely affected by, the rights of the holders of shares of any series of our preferred stock that we may designate and issue in the future.
Equal Status
Except as expressly provided in our Certificate of Incorporation, including with respect to voting rights, shares of Class C common stock have the same rights and privileges and rank equally, share ratably and are identical in all respects to the shares of Class A common stock as to all matters, including in the event of a liquidation or in connection with a change of control. In the event of any merger, consolidation, or other business combination requiring the approval of our stockholders entitled to vote thereon (whether or not we are the surviving entity), the holders of shares of Class C common stock will receive the same amount and form of consideration on a per share basis as the consideration, if any, received by holders of shares of Class A common stock in connection with such merger, consolidation or combination (and if holders of shares of Class A common stock are entitled to make an election as to the amount or form of consideration that such holders will receive in any such merger, consolidation or combination with respect to their shares of Class A common stock, then the holders of shares of Class C common stock will be entitled to make the same election as to their shares of Class C common stock). In the event of any (i) tender or exchange offer to acquire any shares of Class A common stock or Class B common stock by any third party pursuant to an agreement to which we are a party; or (ii) any tender or exchange offer or any other redemption or repurchase by us to acquire any shares of Class A common stock or Class B common stock, the holders of shares of Class C common stock will receive the same amount and form of consideration on a per share basis as the consideration received by holders of shares of Class A common stock (and if holders of shares of Class A common stock are entitled to make an election as to the amount or form of consideration that such holders will receive in any such tender or exchange offer or other repurchase with respect to their shares of Class A common stock, then the holders of shares of Class C common stock will be entitled to make the same election as to their shares of Class C common stock).
Listing
Our Class C common stock is listed on the NYSE under the symbol “CWEN.”
Transfer Agent and Registrar
The transfer agent and registrar for our Class C common stock is Computershare Shareowner Services, LLC.
Class D Common Stock
Voting Rights
Each share of Class D common stock entitles the holder to 1/100th of one vote with respect to each matter presented to our stockholders on which the holders of Class D common stock are entitled to vote. Holders of shares of our Class A common stock, Class B common stock, Class C common stock and Class D common stock vote together as a single class on all matters presented to our stockholders for their vote or approval, except as otherwise required by applicable law or the listing requirements of any exchange on which shares of our common stock are listed. Holders of shares of our Class D common stock do not have cumulative voting rights. Except in respect of matters relating to the election and removal of directors on our Board of Directors and as otherwise provided in our Certificate of Incorporation or required by law, all matters to be voted on by holders of shares of our Class A common stock, Class B common stock, Class C common stock, and Class D common stock must be approved by a majority, on a combined basis, of such shares present in person or by proxy at the meeting and entitled to vote on the subject matter. In the case of election of directors, all matters to be voted on by our stockholders must be approved by a plurality of the votes entitled to be cast by all shares of our common stock on a combined basis.
Dividend and Liquidation Rights
Holders of shares of our Class D common stock do not have any right to receive dividends, other than dividends payable solely in shares of Class D common stock in the event of payment of a dividend in shares
of common stock payable to holders of our Class A common stock and Class C common stock, or to receive a distribution upon our liquidation or winding up except for their right to receive payment for the par value of their shares of Class D common stock in connection with our liquidation.
Mandatory Redemption
Shares of Class D common stock are subject to redemption at a price per share equal to par value upon the conversion of Class D units of Clearway LLC. Shares of Class D common stock so redeemed are automatically cancelled and are not available to be reissued.
Authorized but Unissued Capital Stock
Delaware law does not require stockholder approval for any issuance of authorized shares. However, the listing requirements of the NYSE, which would apply so long as the shares of Class A common stock and Class C common stock remain listed on the NYSE, require stockholder approval of certain issuances equal to or exceeding 20% of the then outstanding voting power or the then outstanding number of shares of Class A common stock and Class C common stock. These additional shares may be used for a variety of corporate purposes, including future public offerings, to raise additional capital or to facilitate acquisitions.
One of the effects of the existence of unissued and unreserved common stock or preferred stock may be to enable our Board of Directors to issue shares to persons friendly to current management, which issuance could render more difficult or discourage an attempt to obtain control of our company by means of a merger, tender offer, proxy contest or otherwise, and thereby protect the continuity of our management and possibly deprive the stockholders of opportunities to sell their shares at prices higher than prevailing market prices.
Preferred Stock
Under our Certificate of Incorporation, we will continue to be authorized to issue up to 10,000,000 shares of preferred stock, par value $0.01 per share, none of which is issued and outstanding.
Our Board of Directors is authorized to provide for the issuance of shares of preferred stock in one or more series and to fix the preferences, powers and relative, participating, optional or other special rights, and qualifications, limitations or restrictions thereof, including the dividend rate, conversion rights, voting rights, redemption rights and liquidation preference and to fix the number of shares to be included in any such series without any further vote or action by our stockholders. Any preferred stock so issued may rank senior to our common stock with respect to the payment of dividends or amounts upon liquidation, dissolution or winding up, or both. The issuance of preferred stock may have the effect of delaying, deferring or preventing a change in control of our company without further action by the stockholders and may adversely affect the voting and other rights of the holders of common stock. The issuance of preferred stock with voting and conversion rights may adversely affect the voting power of the holders of common stock, including the loss of voting control to others. At present, we have no plans to issue any preferred stock.
Corporate Opportunity
As permitted under the DGCL, in our Certificate of Incorporation, we renounced any interest or expectancy in, or any offer of an opportunity to participate in, specified business opportunities that are presented to us or one or more of our officers, directors or stockholders. In recognition that directors, officers and/or employees of GIP may serve as our directors and/or officers, and GIP and its controlled affiliates, not including us (individually, a “GIP Entity”, and collectively, the “GIP Entities”), may engage in similar activities or lines of business that we do, our Certificate of Incorporation provides for the allocation of certain corporate opportunities between us and the GIP Entities. Specifically, none of the GIP Entities will have any duty to refrain from engaging directly or indirectly in the same or similar business activities or lines of business that we do. In the event that a director or officer of any GIP Entity who also is one of our directors or officers acquires knowledge of a potential transaction or matter which may be a corporate opportunity for any of the GIP Entities and us, we will not have any expectancy in such corporate opportunity, and the director or officer will not have any duty to present such corporate opportunity to us and may pursue or acquire such corporate opportunity for himself/herself or direct such opportunity to another person. A
corporate opportunity that an officer or director of ours who is also a director or officer of any of the GIP Entities acquires knowledge of will not belong to us unless the corporate opportunity at issue is expressly offered in writing to such person solely in his or her capacity as a director or officer of ours. In addition, even if a business opportunity is presented to an officer or director of any of the GIP Entities, the following corporate opportunities will not belong to us: (1) those we are not financially able, contractually permitted or legally able to undertake; (2) those not in our line of business; (3) those of no practical advantage to us; and (4) those in which we have no interest or reasonable expectancy. Except with respect to our directors and/or officers who are also directors and/or officers of any of the GIP Entities, the corporate opportunity doctrine applies as construed pursuant to applicable Delaware laws, without limitation.
Antitakeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws
In addition to the disproportionate voting rights that CEG has as a result of its ownership of our Class B common stock and Class D common stock, some provisions of Delaware law contain, and our Certificate of Incorporation and our Bylaws described below contain, a number of provisions which may have the effect of encouraging persons considering unsolicited tender offers or other unilateral takeover proposals to negotiate with our Board of Directors rather than pursue non-negotiated takeover attempts, which we believe may result in an improvement of the terms of any such acquisition in favor of our stockholders. However, these provisions also give our Board of Directors the power to discourage acquisitions that some stockholders may favor.
Undesignated Preferred Stock
The ability to authorize undesignated preferred stock will make it possible for our Board of Directors to issue preferred stock with superior voting, special approval, dividend or other rights or preferences on a discriminatory basis that could impede the success of any attempt to acquire us. These and other provisions may have the effect of deferring, delaying or discouraging hostile takeovers, or changes in control or management of our company.
Meetings and Elections of Directors
Special Meetings of Stockholders. Our Certificate of Incorporation provides that a special meeting of stockholders may be called only by our Board of Directors by a resolution adopted by the affirmative vote of a majority of the total number of directors then in office.
Elimination of Stockholder Action by Written Consent. Our Certificate of Incorporation and our Bylaws provide that holders of our common stock cannot act by written consent in lieu of a meeting.
Vacancies. Any vacancy occurring on our Board of Directors and any newly created directorship may be filled only by a majority of the directors remaining in office (even if less than a quorum), subject to the rights of holders of any series of preferred stock.
Amendments
Amendments of Certificate of Incorporation. The provisions described above under “— Special Meetings of Stockholders,” “— Elimination of Stockholder Action by Written Consent” and “— Vacancies” may be amended only by the affirmative vote of holders of at least two-thirds of the combined voting power of outstanding shares of our capital stock entitled to vote in the election of directors, voting together as a single class.
Amendment of Bylaws. Our Board of Directors has the power to make, alter, amend, change or repeal our Bylaws or adopt new bylaws by the affirmative vote of a majority of the total number of directors then in office.
Notice Provisions Relating to Stockholder Proposals and Nominees
Our Bylaws also impose some procedural requirements on stockholders who wish to make nominations in the election of directors or propose any other business to be brought before an annual or special meeting of stockholders.
Specifically, a stockholder may (i) bring a proposal before an annual meeting of stockholders, (ii) nominate a candidate for election to our Board of Directors at an annual meeting of stockholders, or (iii) nominate a candidate for election to our Board of Directors at a special meeting of stockholders that has been called for the purpose of electing directors, only if such stockholder delivers timely notice to our corporate secretary. The notice must be in writing and must include certain information and comply with the delivery requirements as set forth in the Bylaws.
To be timely, a stockholder’s notice must be received at our principal executive offices:
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in the case of a nomination or other business in connection with an annual meeting of stockholders, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day prior to the first anniversary of the previous year’s annual meeting of stockholders; provided, however, that if the date of the annual meeting is advanced more than 30 days before or delayed more than 70 days after the first anniversary of the preceding year’s annual meeting, notice by the stockholder must be delivered not earlier than the close of business on the 120th day prior to such annual meeting and not later than the close of business on the later of the 90th day prior to such annual meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by us;
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in the case of a nomination in connection with a special meeting of stockholders, not earlier than the close of business on the 120th day prior to such special meeting and not later than the close of business on the later of the 90th day before such special meeting or the 10th day following the day on which public announcement of the date of such meeting is first made by us.
With respect to special meetings of stockholders, our Bylaws provide that only such business shall be conducted as shall have been stated in the notice of the meeting.
Delaware Antitakeover Law
We have opted out of Section 203 of the DGCL. However, our Certificate of Incorporation provides that in the event GIP and its affiliates cease to beneficially own at least 5% of the total voting power of all the then outstanding shares of our capital stock, we will automatically become subject to Section 203 of the DGCL. Section 203 provides that, subject to certain exceptions specified in the law, a Delaware corporation shall not engage in certain “business combinations” with any “interested stockholder” for a three-year period following the time that the stockholder became an interested stockholder unless:
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prior to such time, our Board of Directors approved either the business combination or the transaction that 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 outstanding at the time the transaction commenced, excluding certain shares; or
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at or subsequent to that time, the business combination is approved by our Board of Directors and by the affirmative vote of holders of at least 662∕3% of the outstanding voting stock that is not owned by the interested stockholder.
Generally, a “business combination” includes a merger, asset or stock sale or other transaction resulting in a financial benefit to the interested stockholder. Subject to certain exceptions, an “interested stockholder” is a person who, together with that person’s affiliates and associates, owns, or within the previous three years did own, 15% or more of our voting stock.
Under certain circumstances, Section 203 makes it more difficult for a person who would be an “interested stockholder” to effect various business combinations with a corporation for a three-year period. The provisions of Section 203 may encourage companies interested in acquiring us to negotiate in advance with our Board of Directors because the stockholder approval requirement would be avoided if our Board of Directors approves either the business combination or the transaction that results in the stockholder becoming an interested stockholder. These provisions also may make it more difficult to accomplish transactions that stockholders may otherwise deem to be in their best interests.
Amendments
Any amendments to our Certificate of Incorporation, subject to the rights of holders of our preferred stock, regarding the provisions thereof summarized under “— Corporate Opportunity” or “— Antitakeover Effects of Delaware Law and Our Certificate of Incorporation and Bylaws” will require the affirmative vote of at least 662∕3% of the voting power of all shares of our common stock then outstanding.
Fourth Amended and Restated Limited Liability Company Agreement of Clearway LLC
The following is a description of the material terms of Clearway LLC’s Fourth Amended and Restated Limited Liability Company Agreement.
Governance
Clearway Inc. serves as the sole managing member of Clearway LLC. As such, Clearway Inc., and effectively our Board of Directors, controls the business and affairs of Clearway LLC and is responsible for the management of its business. No other member of Clearway LLC, in its capacity as such, has any authority or right to control the management of Clearway LLC or to bind it in connection with any matter. Any amendment, supplement or waiver of the Clearway LLC operating agreement must be approved by a majority of our independent directors.
Voting and Economic Rights of Members
Clearway LLC has issued four classes of units: Class A units and Class C units, which may only be issued to Clearway Inc., as the sole managing member, and Class B units and Class D units, which may only be issued to CEG and held by CEG or its permitted transferees (collectively, the “CEG Member”). Units of each of the four classes have equivalent economic and other rights, except that upon issuance, each holder of a Class B unit will also be issued a share of our Class B common stock and each holder of a Class D unit will also be issued a share of our Class D common stock. Each Class B unit is exchangeable for a share of our Class A common stock, subject to equitable adjustments for stock splits, dividends and reclassifications in accordance with the terms of the Amended and Restated Exchange Agreement (as described below), and each Class D unit is exchangeable for a share of our Class C common stock, subject to equitable adjustments for stock splits, dividends and reclassifications in accordance with the terms of the Amended and Restated Exchange Agreement. When the CEG Member exchanges a Class B unit of Clearway LLC for a share of our Class A common stock, we will automatically redeem and cancel a corresponding share of our Class B common stock, and the Class B unit will automatically convert into a Class A unit of Clearway LLC issued to us. When the CEG Member exchanges a Class D unit of Clearway LLC for a share of our Class C common stock, we will automatically redeem and cancel a corresponding share of our Class D common stock, and the Class D unit will automatically convert into a Class C unit of Clearway LLC issued to us. None of the units have any voting rights.
Net profits and net losses and distributions by Clearway LLC are allocated and made to holders of units in accordance with the respective number of membership units of Clearway LLC held. Clearway LLC will make distributions to us and CEG for the purpose of funding tax obligations in respect of income of Clearway LLC that is allocated to the members of Clearway LLC. However, Clearway LLC may not make any distributions to its members if doing so would violate any agreement to which it is then a party or any law then applicable to it, have the effect of rendering it insolvent or result in it having net capital lower than that required by applicable law. Additionally, because all of our operations are conducted through Clearway Operating LLC, a wholly owned subsidiary of Clearway LLC, and Clearway Operating LLC’s Amended and Restated Credit Agreement restricts the ability of Clearway Operating LLC to make distributions to Clearway LLC, Clearway LLC may not have any funds available to make distributions to us and CEG (including with respect to tax obligations).
Coordination of Clearway Inc. and Clearway LLC
At any time Clearway Inc. issues a share of its Class A common stock or Class C common stock for cash, the net proceeds therefrom will promptly be transferred to Clearway LLC and Clearway LLC will either:
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(i) transfer a newly issued Class A unit of Clearway LLC to Clearway Inc. in the case of the issuance of a share of Class A common stock, or transfer a newly issued Class C unit of Clearway LLC to Clearway Inc. in the case of the issuance of a share of Class C common stock or (ii) purchase Class B Units or Class D Units from one or more “Yield LLC Unitholders” (as defined in the Amended and Restated Exchange Agreement (as defined below)), which Class B Units or Class D Units, as applicable, will automatically be reclassified into Class A Units or Class Units, as applicable; or
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use a portion of the net proceeds to purchase a Class B unit of Clearway LLC from the CEG Member in the case of the issuance of a share of Class A common stock, which Class B unit will automatically convert into a Class A unit of Clearway LLC when transferred to Clearway Inc. or use the net proceeds to purchase a Class D unit of Clearway LLC from the CEG Member in the case of the issuance of a share of Class C common stock, which Class D unit will automatically convert into a Class C unit of Clearway LLC when transferred to Clearway Inc.
In the event Clearway LLC purchases a Class B unit or a Class D unit of Clearway LLC from the CEG Member, Clearway Inc. will concurrently redeem and cancel the corresponding share of its Class B common stock or Class D common stock, as applicable.
If Clearway Inc. issues other classes or series of equity securities, Clearway LLC will issue, and Clearway Inc. will use the net proceeds therefrom to purchase, an equal amount of units with designations, preferences and other rights and terms that are substantially the same as Clearway Inc.’s newly-issued equity securities. Conversely, if Clearway Inc. elects to redeem any shares of its Class A common stock or Class C common stock (or its equity securities of other classes or series) for cash, Clearway LLC will, immediately prior to such redemption, redeem an equal number of Class A units or Class C units (or its units of the corresponding classes or series) held by Clearway Inc. upon the same terms and for the same price, as the shares of Class A common stock or Class C common stock (or equity securities of such other classes or series) so redeemed.
Issuances and Transfer of Units
Class A units and Class C units may only be issued to Clearway Inc., as the sole managing member of Clearway LLC, and are non-transferable except upon redemption by Clearway LLC. Class B units and Class D units may only be issued to the CEG Member. Class B units and Class D units may not be transferred without our consent, which may not be unreasonably withheld, conditioned or delayed, except the CEG Member may transfer Class B units or Class D units to its direct or indirect limited partners or other equityholders and to a permitted transferee (including an affiliate) without our consent. The CEG Member may not transfer any Class B units or Class D units to any person unless the CEG Member transfers an equal number of shares of our Class B common stock or Class D common stock, as applicable, to the same transferee.
Amended and Restated Exchange Agreement
We entered into an amended and restated exchange agreement pursuant to which CEG (as successor-in-interest to NRG Energy, Inc.) (and certain permitted assignees and permitted transferees who acquire Class B units or Class D units of Clearway LLC) may from time to time cause Clearway LLC to exchange its Class B units for shares of our Class A common stock on a one-for-one basis, subject to adjustments for stock splits, stock dividends and reclassifications, or to exchange its Class D units for shares of our Class C common stock on a one-for-one basis, subject to adjustments for stock splits, stock dividends, and reclassifications (the “Amended and Restated Exchange Agreement”). The Amended and Restated Exchange Agreement also provides that, subject to certain exceptions, holders do not have the right to cause Clearway LLC to exchange Class B or Class D units if Clearway LLC determines that such exchange would be prohibited by law or regulation or would violate other agreements to which Clearway Inc. may be subject, and Clearway Inc. may impose additional restrictions on exchange that it determines necessary or advisable so that Clearway LLC is not treated as a “publicly traded partnership” for U.S. federal income tax purposes.
When CEG or its permitted transferee exchanges a Class B unit of Clearway LLC for a share of our Class A common stock, we will automatically redeem and cancel a corresponding share of our Class B common stock and the Class B unit will automatically convert into a Class A unit when issued to Clearway
Inc. Similarly, when CEG or its permitted transferee exchanges a Class D unit of Clearway LLC for a share of our Class C common stock, we will automatically redeem and cancel a corresponding share of our Class D common stock and the Class D unit will automatically convert into a Class C unit when issued to Clearway Inc. As a result, when a holder exchanges its Class B units for shares of our Class A common stock, or its Class D units for shares of our Class C common stock, our interest in Clearway LLC will be correspondingly increased. We have reserved for issuance 42,738,750 shares of our Class A common stock, which is the aggregate number of shares of Class A common stock expected to be issued over time upon the exchange of all Class B units of Clearway LLC currently outstanding, and 42,738,750 shares of our Class C common stock, which is the aggregate number of shares of Class C common stock expected to be issued over time upon the exchange of all Class D units of Clearway LLC currently outstanding.
Indemnification and Exculpation
To the extent permitted by applicable law, Clearway LLC will indemnify us, our authorized officers and our other employees and agents from and against any losses, liabilities, damages, costs, expenses, fees or penalties incurred in connection with serving in such capacities, provided that the acts or omissions of these indemnified persons are not the result of fraud, intentional misconduct or a violation of the implied contractual duty of good faith and fair dealing, or any lesser standard of conduct permitted under applicable law.
Such authorized officers and other employees and agents will not be liable to Clearway LLC, its members or their affiliates for damages incurred as a result of any acts or omissions of these persons, provided that the acts or omissions of these exculpated persons are not the result of fraud, intentional misconduct or a violation of the implied contractual duty of good faith and fair dealing, or any lesser standard of conduct permitted under applicable law.
Amended and Restated Registration Rights Agreement
We entered into an amended and restated registration rights agreement with CEG (as successor-in-interest to NRG Energy, Inc.), pursuant to which CEG and its affiliates will be entitled to demand registration rights, including the right to demand that a shelf registration statement be filed, and “piggyback” registration rights, for shares of our Class A common stock that are issuable upon exchange of Class B units of Clearway LLC that CEG owns, and for shares of our Class C common stock that are issuable upon exchange of Class D units of Clearway LLC that CEG owns.
DESCRIPTION OF DEBT SECURITIES
We may offer secured or unsecured debt securities, which may be convertible or non-convertible. Our debt securities will be issued under an indenture to be entered into between us and Delaware Trust Company.
We have summarized certain general features of the debt securities from the indenture. A form of indenture is filed as an exhibit to the registration statement of which this prospectus forms a part. The following description of the terms of the debt securities sets forth certain general terms and provisions. The particular terms of the debt securities offered by any prospectus supplement and the extent, if any, to which these general provisions may apply to the debt securities will be described in the related prospectus supplement.
General
The aggregate principal amount of debt securities that may be issued under the indenture is unlimited. The debt securities may be issued in one or more series as may be authorized from time to time.
Reference is made to the applicable prospectus supplement for the following terms of the debt securities (if applicable):
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title and aggregate principal amount;
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whether the securities will be senior or subordinated;
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applicable subordination provisions, if any;
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whether securities issued by us will be entitled to the benefits of any form of guarantee;
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conversion or exchange into other securities;
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whether securities issued by us will be secured or unsecured, and if secured, what the collateral will consist of;
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percentage or percentages of principal amount at which such securities will be issued;
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maturity date(s);
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interest rate(s) or the method for determining the interest rate(s);
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dates on which interest will accrue or the method for determining dates on which interest will accrue and dates on which interest will be payable;
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redemption (including upon a “change of control”) or early repayment provisions;
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authorized denominations;
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form;
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amount of discount or premium, if any, with which such securities will be issued;
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whether such securities will be issued in whole or in part in the form of one or more global securities;
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identity of the depositary for global securities;
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whether a temporary security is to be issued with respect to such series and whether any interest payable prior to the issuance of definitive securities of the series will be credited to the account of the persons entitled thereto;
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the terms upon which beneficial interests in a temporary global security may be exchanged in whole or in part for beneficial interests in a definitive global security or for individual definitive securities;
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conversion or exchange features;
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any covenants applicable to the particular debt securities being issued;
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any defaults and events of default applicable to the particular debt securities being issued;
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currency, currencies or currency units in which the purchase price for, the principal of and any premium and any interest on, such securities will be payable;
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time period within which, the manner in which and the terms and conditions upon which the purchaser of the securities can select the payment currency;
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securities exchange(s) on which the securities will be listed, if any;
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whether any underwriter(s) will act as market maker(s) for the securities;
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extent to which a secondary market for the securities is expected to develop;
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additions to or changes in the events of default with respect to the securities and any change in the right of the trustee or the holders to declare the principal, premium and interest with respect to such securities to be due and payable;
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provisions relating to covenant defeasance and legal defeasance;
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provisions relating to satisfaction and discharge of the indenture;
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provisions relating to the modification of the indenture both with and without the consent of holders of debt securities issued under the indenture; and
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additional terms not inconsistent with the provisions of the indenture.
One or more series of debt securities may be sold at a substantial discount below their stated principal amount, bearing no interest or interest at a rate which at the time of issuance is below market rates. One or more series of debt securities may be variable rate debt securities that may be exchanged for fixed rate debt securities.
United States federal income tax consequences and special considerations, if any, applicable to any such series will be described in the applicable prospectus supplement.
Debt securities may be issued where the amount of principal and/or interest payable is determined by reference to one or more currency exchange rates, commodity prices, equity indices or other factors. Holders of such securities may receive a principal amount or a payment of interest that is greater than or less than the amount of principal or interest otherwise payable on such dates, depending upon the value of the applicable currencies, commodities, equity indices or other factors. Information as to the methods for determining the amount of principal or interest, if any, payable on any date, the currencies, commodities, equity indices or other factors to which the amount payable on such date is linked and certain additional United States federal income tax considerations will be set forth in the applicable prospectus supplement.
The term “debt securities” includes debt securities denominated in U.S. dollars or, if specified in the applicable prospectus supplement, in any other freely transferable currency or units based on or relating to foreign currencies.
We expect most debt securities to be issued in fully registered form without coupons and in denominations of $2,000 and any integral multiple of $1,000 in excess thereof. Subject to the limitations provided in the indenture and as otherwise described in the applicable prospectus supplement, debt securities that are issued in registered form may be transferred or exchanged at the corporate trust office of the trustee, without the payment of any service charge, other than any tax or other governmental charge payable in connection therewith.
Global Securities
The debt securities of a series may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a depositary (the “depositary”) identified in the applicable prospectus supplement. Global securities will be issued in registered form and in either temporary or definitive form. Unless and until it is exchanged in whole or in part for the individual debt securities, a global security may not be transferred except as a whole by the depositary for such global security to a nominee of such depositary or by a nominee of such depositary to such depositary or another nominee of such depositary or by such depositary or any such nominee to a successor of such depositary or a nominee of such successor. The specific terms of the depositary arrangement with respect to any debt securities of a series and the rights of and limitations upon owners of beneficial interests in a global security will be described in the applicable prospectus supplement.
Governing Law
The indenture and the debt securities will be construed in accordance with and governed by the laws of the State of New York, without giving effect to the principles thereof relating to conflicts of law.
PLAN OF DISTRIBUTION
Initial Offering and Sale of Securities
We may sell securities from time to time in one or more transactions separately or in combination. We may sell the securities of or within any series to or through agents, underwriters, dealers, remarketing firms or other third parties or directly to one or more purchasers or through a combination of any of these methods. We may issue securities as a dividend or distribution. In some cases, we or dealers acting with us or on behalf of us may also purchase securities and reoffer them to the public. We may also offer and sell, or agree to deliver, securities pursuant to, or in connection with, any option agreement or other contractual arrangement.
Agents whom we designate may solicit offers to purchase the securities.
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If required, we will name any agent involved in offering or selling securities, and disclose any commissions that we will pay to the agent, in the applicable prospectus supplement.
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Unless we indicate otherwise in the applicable prospectus supplement, agents will act on a best efforts basis for the period of their appointment.
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Agents may be deemed to be underwriters under the Securities Act, of any of the securities that they offer or sell.
We may use an underwriter or underwriters in the offer or sale of the securities.
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If we use an underwriter or underwriters, we will execute an underwriting agreement with the underwriter or underwriters at the time that we reach an agreement for the sale of the securities.
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We will include the names of the specific managing underwriter or underwriters, as well as the names of any other underwriters, material relationships between the Company and underwriters, and the terms of the transactions, including the compensation the underwriters and dealers will receive, in the applicable prospectus supplement.
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The underwriters will use the applicable prospectus supplement, together with this prospectus, to sell the securities.
We may use a dealer to sell the securities.
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If we use a dealer, we will sell the securities to the dealer, as principal.
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The dealer will then sell the securities to the public at varying prices that the dealer will determine at the time it sells the securities.
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We will include the name of the dealer and the terms of the transactions with the dealer in the applicable prospectus supplement.
We may solicit directly offers to purchase the securities, and we may directly sell the securities to institutional or other investors. We will describe the terms of direct sales in the applicable prospectus supplement.
We may engage in “at the market offerings” within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an existing trading market on an exchange or otherwise.
We may also offer and sell securities, if so indicated in the applicable prospectus supplement, in connection with a remarketing upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more firms referred to as remarketing firms, acting as principals for their own accounts or as our agents. Any remarketing firm will be identified and the terms of its agreement, if any, with us, and its compensation will be described in the applicable prospectus supplement. Remarketing firms may be deemed to be underwriters under the Securities Act in connection with the securities they remarket.
We may indemnify agents, underwriters, dealers and remarketing firms against certain liabilities, including liabilities under the Securities Act. Agents, underwriters, dealers and remarketing firms, or their
affiliates, may be customers of, engage in transactions with or perform services for us or our respective affiliates, in the ordinary course of business.
We may authorize agents and underwriters to solicit offers by certain institutions to purchase the securities at the public offering price under delayed delivery contracts.
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If we use delayed delivery contracts, we will disclose that we are using them in the prospectus supplement and will tell you when we will demand payment and delivery of the securities under the delayed delivery contracts.
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These delayed delivery contracts will be subject only to the conditions that we describe in the prospectus supplement.
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We will describe in the applicable prospectus supplement the commission that underwriters and agents soliciting purchases of the securities under delayed contracts will be entitled to receive.
Any underwriter, agent or dealer that is a Financial Industry Regulatory Authority member is not permitted to sell securities in an offering to accounts over which it exercises discretionary authority without the prior specific written approval of its customer.
Unless otherwise specified in connection with a particular underwritten offering of securities, the underwriters will not be obligated to purchase offered securities unless specified conditions are satisfied, and if the underwriters do purchase any offered securities, they will purchase all offered securities.
We may enter into derivative or other hedging transactions involving the securities with third parties, or sell securities not covered by the prospectus to third parties in privately-negotiated transactions. If we so indicate in the applicable prospectus supplement, in connection with those derivative transactions, the third parties may sell securities covered by this prospectus and the related prospectus supplement, including in short sale transactions, or may lend securities in order to facilitate short sale transactions by others. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of securities, and may use securities received from us in settlement of those derivative or hedging transactions to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment to the registration statement that includes this prospectus).
We may effect sales of securities in connection with forward sale, option or other types of agreements with third parties. Any distribution of securities pursuant to any forward sale agreement may be effected from time to time in one or more transactions that may take place through a stock exchange, including block trades or ordinary broker’s transactions, or through broker-dealers acting either as principal or agent, or through privately-negotiated transactions, or through an underwritten public offering, or through a combination of any such methods of sale, at market prices prevailing at the time of sale, at prices relating to such prevailing market prices or at negotiated or fixed prices.
We may loan or pledge securities to third parties that in turn may sell the securities using this prospectus and the related prospectus supplement or, if we default in the case of a pledge, may offer and sell the securities from time to time using this prospectus and the related prospectus supplement. Such third parties may transfer their short positions to investors in the securities or in connection with a concurrent offering of other securities offered by this prospectus and the related prospectus supplement or otherwise.
We may sell shares of our common stock under a direct stock purchase and dividend reinvestment plan to be established after the date of this prospectus. The terms of any such plan will be set forth in the applicable prospectus supplement.
LEGAL MATTERS
Unless otherwise indicated in the applicable prospectus supplement, the validity of the securities that may be offered hereby will be passed upon for us by Baker Botts L.L.P., Dallas, Texas. If legal matters in connection with the offering made by this prospectus are passed on by counsel for the underwriters, dealers or agents, if any, that counsel will be named in the applicable prospectus supplement.
EXPERTS
The consolidated financial statements of Clearway Energy, Inc. appearing in Clearway Energy, Inc.’s Annual Report (Form 10-K) for the year ended December 31, 2022, and the effectiveness of Clearway Energy, Inc.’s internal control over financial reporting as of December 31, 2022, have been audited by Ernst & Young LLP, independent registered public accounting firm, as set forth in their reports thereon included therein, and incorporated herein by reference. Such financial statements are, and audited financial statements to be included in subsequently filed documents will be, incorporated herein in reliance upon the reports of Ernst & Young LLP pertaining to such financial statements and the effectiveness of our internal control over financial reporting as of the respective dates (to the extent covered by consents filed with the Securities and Exchange Commission) given on the authority of such firm as experts in accounting and auditing.
The consolidated financial statements of Clearway Energy, Inc for the year ended December 31, 2020 have been incorporated by reference herein and in the prospectus 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.
INCORPORATION BY REFERENCE OF CERTAIN INFORMATION
The SEC allows the “incorporation by reference” of the information filed by us with the SEC into this prospectus, which means that important information can be disclosed to you by referring you to those documents and those documents will be considered part of this prospectus. Information that we file later with the SEC will automatically update and supersede the previously filed information. 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 Exchange Act (other than portions of these documents deemed to be “furnished” or not deemed to be “filed,” including the portions of these documents that are either (1) described in paragraph (e) of Item 201 of Regulation S-K or paragraphs (d)(1)-(3) and (e)(5) of Item 407 of Regulation S-K promulgated by the SEC or (2) furnished under Item 2.02 or Item 7.01 of a Current Report on Form 8-K) are incorporated by reference herein:
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You may obtain any of the documents incorporated by reference from the SEC through the SEC’s website at www.sec.gov. You may also 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 visiting our website at www.clearwayenergy.com, or by writing or calling us at the following address:
Clearway Energy, Inc.
300 Carnegie Center, Suite 300
Princeton, NJ 08540
(609) 608-1525
Attention: Corporate Secretary
WHERE YOU CAN FIND MORE INFORMATION
We are subject to the reporting, proxy and information requirements of the Exchange Act, and as a result are required to file periodic reports, proxy statements and other information with the SEC. Such reports and other information (including the documents incorporated by reference into this prospectus supplement) are available to the public on the SEC’s website at www.sec.gov.
Additionally, our filings with the SEC that are filed or furnished pursuant to section 13(a) or 15(d) of the Exchange Act are available free of charge through the “Investor Relations” section of our website, http://www.clearwayenergy.com, as soon as reasonably practicable after they are electronically filed with, or furnished to, the SEC. Our website and the information contained on that site, or connected to that site, are not incorporated into and are not a part of this prospectus except for the documents specifically incorporated by reference as noted above.
We have filed with the SEC a registration statement on Form S-3 relating to the securities covered by this prospectus. This prospectus, which forms a part of the registration statement, does not contain all the information that is included in the registration statement. You will find additional information about us in the registration statement. Any statements made in this prospectus concerning the provisions of legal documents are not necessarily complete and you should read the documents that are filed as exhibits to the registration statement or otherwise filed with the SEC for a more complete understanding of the document or matter.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of the estimated expenses (other than underwriting discounts and commissions), to be paid solely by the registrant, in connection with the issuance and distribution of the securities being registered hereby:
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Amount to
be Paid
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SEC registration fee
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$ |
*
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Legal fees and expenses
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**
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Accounting fees and expenses
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**
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Stock exchange listing fees.
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**
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Blue sky fees
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**
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Printing fees
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**
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Rating agency fees
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**
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Trustee’s fees and expenses
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**
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Miscellaneous
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**
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Total
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$ |
**
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*
In accordance with Rules 456(b) and 457(r), we are deferring payment of the registration fee.
**
These fees are calculated based on the securities offered and the number of issuances and accordingly cannot be estimated at this time. The foregoing sets forth the general categories of expenses (other than underwriting discounts and commissions) that we anticipate to incur in connection with the offering of securities under this registration statement. An estimate of the aggregate expenses in connection with the issuance and distribution of the securities being offered will be included in the applicable prospectus supplement.
Item 15. Indemnification of Directors and Officers.
Delaware General Corporation Law; Certificate of Incorporation
Section 102(b)(7) of the DGCL allows a corporation to provide in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. Our Certificate of Incorporation provides for this limitation of liability.
Section 145 of the DGCL (“Section 145”) provides that a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe that his or her conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are a party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the corporation’s best interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify him under Section 145.
Bylaws
Our Bylaws provide that we must indemnify our directors and officers to the fullest extent permitted by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified.
Indemnification Agreements
We have entered into indemnification agreements with certain of our executive officers and directors pursuant to which we agree to indemnify such persons against all expenses and liabilities incurred or paid by such person in connection with any proceeding arising from the fact that such person is or was an officer or director of our company, and to advance expenses as incurred by or on behalf of such person in connection therewith.
The indemnification rights set forth above are not exclusive of any other right which an indemnified person may have or hereafter acquire under any statute, provision of our Certificate of Incorporation, our Bylaws, agreement, vote of stockholders or disinterested directors or otherwise.
Insurance
We maintain standard policies of insurance that provide coverage (1) to our directors and officers against loss rising from claims made by reason of breach of duty or other wrongful act and (2) to us with respect to indemnification payments that we may make to such directors and officers.
Item 16. Exhibits.
EXHIBIT INDEX
Exhibit
Number
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Description
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Method of Filing
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1.1
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Form of Underwriting Agreement.
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To be filed by an amendment or an exhibit to a document to be incorporated or deemed incorporated by reference to this registration statement, including a Current Report on Form 8-K.
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3.1
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Incorporated herein by reference to Exhibit 3.1 to the Company’s Current Report on Form 8-K filed on May 4, 2020.
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3.3
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Incorporated herein by reference to Exhibit 3.2 to the Company’s Current Report on Form 8-K filed on September 5, 2018.
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Exhibit
Number
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Description
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Method of Filing
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4.1
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Incorporated by reference to Exhibit 4.1 to NRG Yield, Inc.’s Form 8-A/A filed on May 8, 2015.
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4.2
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Incorporated by reference to Exhibit 4.2 to NRG Yield, Inc.’s Form 8-A/A filed on May 8, 2015.
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4.3
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Form of Indenture for Debt Securities of Clearway Energy, Inc. (including form of Debt Security).
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Filed herewith.
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4.4
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Form of Certificate of Designation.
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To be filed by an amendment or an exhibit to a document to be incorporated or deemed incorporated by reference to this registration statement, including a Current Report on Form 8-K.
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4.5
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Form of Specimen Preferred Stock Certificate.
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To be filed by an amendment or an exhibit to a document to be incorporated or deemed incorporated by reference to this registration statement, including a Current Report on Form 8-K.
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5.1
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Filed herewith.
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23.1
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Consent of Ernst & Young LLP, independent registered public accounting firm.
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Filed herewith.
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23.2
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Consent of KPMG LLP, independent registered public accounting firm.
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Filed herewith.
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23.3
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Included in Exhibit 5.1.
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24.1
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Included on the signature pages hereof.
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25.1
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Filed herewith.
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107
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Filed herewith
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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;
(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 a 20% 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) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4)
That, for the purpose of determining liability under the Securities Act to any purchaser:
(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 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5)
That, for the purpose of determining liability of the registrant under the Securities Act to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered to 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, each filing of such annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c)
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions referred to in Item 15, 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 such 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, such 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 of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Princeton, State of New Jersey, on August 8, 2023.
CLEARWAY ENERGY, INC.
/s/ Christopher S. Sotos
Christopher S. Sotos
President and Chief Executive Officer
POWER OF ATTORNEY
KNOW BY ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints jointly and severally Christopher S. Sotos, Kevin P. Malcarney and Amelia McKeithen, and each of them, his or her true and lawful attorney-in-fact and agents with full and several power of substitution, for him or her and his or her name, place and stead, in any and all capacities, to sign any and all amendments (including post-effective amendments) to this Registration Statement, and to file the same, with all exhibits thereto, and all documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, and each of them full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agents or any of them, or their substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated:
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Signature
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Title
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Date
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/s/ Christopher S. Sotos
Christopher S. Sotos
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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August 8, 2023
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/s/ Sarah Rubenstein
Sarah Rubenstein
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Senior Vice President and Chief Accounting Officer
(Principal Financial Officer and Principal Accounting Officer)
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August 8, 2023
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/s/ Jonathan Bram
Jonathan Bram
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Chairman of the Board
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August 8, 2023
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/s/ Nathaniel Anschuetz
Nathaniel Anschuetz
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Director
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August 8, 2023
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/s/ Brian R. Ford
Brian R. Ford
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Director
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August 8, 2023
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/s/ Bruce MacLennan
Bruce MacLennan
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Director
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August 8, 2023
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/s/ Daniel B. More
Daniel B. More
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Director
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August 8, 2023
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Signature
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Title
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Date
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/s/ E. Stanley O’Neal
E. Stanley O’Neal
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Director
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August 8, 2023
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/s/ Jennifer Lowry
Jennifer Lowry
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Director
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August 8, 2023
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/s/ Guillaume Hédiard
Guillaume Hédiard
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Director
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August 8, 2023
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/s/ Vincent Stoquart
Vincent Stoquart
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Director
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August 8, 2023
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/s/ Emmanuel Barrois
Emmanuel Barrois
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Director
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August 8, 2023
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Exhibit 4.3
Clearway Energy, Inc.
INDENTURE
Dated as of __,
Delaware Trust Company,
as Trustee
Table
of Contents
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Page |
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| ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE |
1 |
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| Section 1.1 |
Definitions |
1 |
| Section 1.2 |
Other Definitions |
7 |
| Section 1.3 |
Incorporation by Reference of Trust Indenture Act |
7 |
| Section 1.4 |
Rules of Construction |
7 |
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| ARTICLE II. THE SECURITIES |
8 |
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| Section 2.1 |
Issuable in Series |
8 |
| Section 2.2 |
Establishment of Terms of Series of Securities |
8 |
| Section 2.3 |
Execution and Authentication |
10 |
| Section 2.4 |
Registrar and Paying Agent |
11 |
| Section 2.5 |
Paying Agent to Hold Money in Trust |
12 |
| Section 2.6 |
Securityholder Lists |
12 |
| Section 2.7 |
Transfer and Exchange |
12 |
| Section 2.8 |
Mutilated, Destroyed, Lost and Stolen Securities |
13 |
| Section 2.9 |
Outstanding Securities |
14 |
| Section 2.10 |
Treasury Securities |
14 |
| Section 2.11 |
Temporary Securities |
15 |
| Section 2.12 |
Cancellation |
15 |
| Section 2.13 |
Defaulted Interest |
15 |
| Section 2.14 |
Global Securities |
16 |
| Section 2.15 |
CUSIP Numbers |
17 |
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| ARTICLE III. REDEMPTION |
17 |
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| Section 3.1 |
Notice to Trustee |
17 |
| Section 3.2 |
Selection of Securities to be Redeemed or Repurchased |
18 |
| Section 3.3 |
Notice of Redemption |
18 |
| Section 3.4 |
Effect of Notice of Redemption |
19 |
| Section 3.5 |
Deposit of Redemption Price |
19 |
| Section 3.6 |
Securities Redeemed in Part |
19 |
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| ARTICLE IV. COVENANTS |
19 |
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| Section 4.1 |
Payment of Principal and Interest |
19 |
| Section 4.2 |
Maintenance of Office or Agency |
20 |
| Section 4.3 |
Reports |
20 |
| Section 4.4 |
Compliance Certificate |
21 |
| Section 4.5 |
Taxes |
21 |
| Section 4.6 |
Stay, Extension and Usury Laws |
21 |
| Section 4.7 |
Corporate Existence |
21 |
| ARTICLE V. SUCCESSORS |
22 |
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| Section 5.1 |
Merger, Consolidation, or Sale of Assets |
22 |
| Section 5.2 |
Successor Corporation Substituted |
23 |
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| ARTICLE VI. DEFAULTS AND REMEDIES |
23 |
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| Section 6.1 |
Events of Default |
23 |
| Section 6.2 |
Acceleration |
24 |
| Section 6.3 |
Other Remedies |
25 |
| Section 6.4 |
Waiver of Past Defaults |
25 |
| Section 6.5 |
Control by Majority |
25 |
| Section 6.6 |
Limitation on Suits |
25 |
| Section 6.7 |
Rights of Holders of Security to Receive Payment |
26 |
| Section 6.8 |
Collection Suit by Trustee |
26 |
| Section 6.9 |
Trustee May File Proofs of Claim |
26 |
| Section 6.10 |
Priorities |
27 |
| Section 6.11 |
Undertaking for Costs |
27 |
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| ARTICLE VII. TRUSTEE |
28 |
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| Section 7.1 |
Duties of Trustee |
28 |
| Section 7.2 |
Rights of Trustee |
29 |
| Section 7.3 |
Individual Rights of Trustee |
31 |
| Section 7.4 |
Trustee’s Disclaimer |
31 |
| Section 7.5 |
Notice of Defaults |
31 |
| Section 7.6 |
Reports by Trustee to Holders |
31 |
| Section 7.7 |
Compensation and Indemnity |
32 |
| Section 7.8 |
Replacement of Trustee |
32 |
| Section 7.9 |
Successor Trustee by Merger, etc. |
33 |
| Section 7.10 |
Eligibility; Disqualification |
34 |
| Section 7.11 |
Preferential Collection of Claims Against Company |
34 |
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| ARTICLE VIII. LEGAL DEFEASANCE AND COVENANT DEFEASANCE |
34 |
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| Section 8.1 |
Option to Effect Legal Defeasance or Covenant Defeasance |
34 |
| Section 8.2 |
Legal Defeasance and Discharge |
34 |
| Section 8.3 |
Covenant Defeasance |
35 |
| Section 8.4 |
Conditions to Legal or Covenant Defeasance |
35 |
| Section 8.5 |
Deposited Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions |
36 |
| Section 8.6 |
Repayment to Company |
37 |
| Section 8.7 |
Reinstatement |
37 |
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| ARTICLE IX. AMENDMENTS AND WAIVERS |
38 |
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| Section 9.1 |
Without Consent of Holders |
38 |
| Section 9.2 |
With Consent of Holders |
39 |
| Section 9.3 |
Limitations |
39 |
| Section 9.4 |
Compliance with Trust Indenture Act |
40 |
| Section 9.5 |
Revocation and Effect of Consents |
40 |
| Section 9.6 |
Notation on or Exchange of Securities |
40 |
| Section 9.7 |
Trustee Protected |
41 |
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| ARTICLE X. SATISFACTION AND DISCHARGE |
41 |
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| Section 10.1 |
Satisfaction and Discharge |
41 |
| Section 10.2 |
Application of Trust Money |
42 |
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| ARTICLE XI. MISCELLANEOUS |
42 |
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| Section 11.1 |
Trust Indenture Act Controls |
42 |
| Section 11.2 |
Notices |
42 |
| Section 11.3 |
Communication by Holders with Other Holders |
43 |
| Section 11.4 |
Certificate and Opinion as to Conditions Precedent |
43 |
| Section 11.5 |
Statements Required in Certificate or Opinion |
43 |
| Section 11.6 |
Rules by Trustee and Agents |
44 |
| Section 11.7 |
Legal Holidays |
44 |
| Section 11.8 |
No Recourse Against Others |
44 |
| Section 11.9 |
Counterparts |
45 |
| Section 11.10 |
Governing Laws |
45 |
| Section 11.11 |
No Adverse Interpretation of Other Agreements |
45 |
| Section 11.12 |
Successors |
45 |
| Section 11.13 |
Severability |
45 |
| Section 11.14 |
Table of Contents, Headings, Etc. |
45 |
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| ARTICLE XII. SINKING FUNDS |
46 |
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|
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| Section 12.1 |
Applicability of Article |
46 |
| Section 12.2 |
Satisfaction of Sinking Fund Payments with Securities |
46 |
| Section 12.3 |
Redemption of Securities for Sinking Fund |
47 |
| Section 12.4 |
Compliance with Applicable Anti-Terrorism and Anti-Money Laundering Regulations |
47 |
CLEARWAY
ENERGY, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and
Indenture, dated as of ,
| §310(a)(1) | |
7.10 |
| (a)(2) | |
7.10 |
| (a)(3) | |
Not Applicable |
| (a)(4) | |
Not Applicable |
| (a)(5) | |
7.10 |
| (b) | |
7.10 |
| § 311(a) | |
7.11 |
| (b) | |
7.11 |
| § 312(a) | |
2.6 |
| (b) | |
Not Applicable |
| (c) | |
Not Applicable |
| §313(a) | |
7.6 |
| (b)(1) | |
7.6 |
| (b)(2) | |
7.6 |
| (c)(1) | |
7.6 |
| (d) | |
7.6 |
| § 314(a) | |
4.3, 11.5 |
| (b) | |
Not Applicable |
| (c)(1) | |
11.4 |
| (c)(2) | |
11.4 |
| (c)(3) | |
Not Applicable |
| (d) | |
Not Applicable |
| (e) | |
11.5 |
| (f) | |
Not Applicable |
| § 315(a) | |
7.1 |
| (b) | |
7.5 |
| (c) | |
7.1 |
| (d) | |
7.1 |
| (e) | |
6.11 |
| §316(a) | |
2.10 |
| (a)(1)(A) | |
6.5 |
| (a)(1)(B) | |
6.4 |
| (b) | |
9.3 |
| §317(a)(1) | |
6.8 |
| (a)(2) | |
6.9 |
| (b) | |
2.5 |
| § 318(a) | |
11.1 |
Note: This reconciliation and tie shall not, for
any purpose, be deemed to be part of the Indenture.
Indenture,
dated as of _____________, _______, between Clearway Energy, Inc., a Delaware corporation (“Company”), and Delaware Trust Company,
as trustee (“Trustee”).
Each party agrees as follows
for the benefit of the other party and for the equal and ratable benefit of the Holders of the Securities issued under this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
“Additional Amounts”
means any additional amounts which are required hereby or by any Security, under circumstances specified herein or therein, to be paid
by the Company in respect of certain taxes imposed on Holders specified herein or therein and which are owing to such Holders.
“Affiliate” of any
specified person means any other person directly or indirectly controlling or controlled by or under direct or indirect common control
with such specified person. For purposes of this definition, “control”, as used with respect to any person, means the possession,
directly or indirectly, of the power to direct or cause the direction of the management or policies of such person, whether through the
ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a
Person will be deemed to be control. For purposes of this definition, the terms “controlling,” “controlled by”
and “under common control with” have correlative meanings.
“Agent” means any
Registrar, Paying Agent or Service Agent.
“Attributable Debt”
in respect of a sale and leaseback transaction means, at the time of determination, the present value of the obligation of the lessee
for net rental payments during the remaining term of the lease included in such sale and leaseback transaction including any period for
which such lease has been extended or may, at the option of the lessor, be extended. Such present value shall be calculated using a discount
rate equal to the rate of interest implicit in such transaction, determined in accordance with GAAP; provided, however, that if such sale
and leaseback transaction results in a Capital Lease Obligation, the amount of Indebtedness represented thereby will be determined in
accordance with the definition of “Capital Lease Obligation.”
“Board of Directors”
means:
(1) with
respect to a corporation, the board of directors of the corporation or any committee thereof duly authorized to act on behalf of such
board;
(2) with
respect to a partnership, the Board of Directors of the general partner of the partnership;
(3) with
respect to a limited liability company, the managing member or members or any controlling committee of managing members thereof; and
(4) with
respect to any other person, the board or committee of such person serving a similar function.
“Board Resolution”
means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company to have been adopted by the Board of
Directors or pursuant to authorization by the Board of Directors and to be in full force and effect on the date of the certificate and
delivered to the Trustee.
“Business Day” means
any day except a Saturday, Sunday or a legal holiday in The City of New York on which banking institutions are authorized or required
by law, regulation or executive order to close and any other day expressly provided for as a “Business Day” in a Board Resolution,
Officers’ Certificate or supplemental indenture hereto for a particular Series.
“Capital Lease Obligation”
means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time
be required to be capitalized on a balance sheet in accordance with GAAP, and the Stated Maturity thereof shall be the date of the last
payment of rent or any other amount due under such lease prior to the first date upon which such lease may be prepaid by the lessee without
payment of a penalty.
“Capital Stock”
means:
(1) in
the case of a corporation, corporate stock;
(2) in
the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated)
of corporate stock;
(3) in
the case of a partnership or limited liability company, partnership interests (whether general or limited) or membership interests; and
(4) 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, but excluding from all of the foregoing any debt securities convertible into Capital Stock, whether or
not such debt securities include any right of participation with Capital Stock.
“Company” means
the party named as such above until a successor replaces it and thereafter means the successor.
“Company Order”
means a written order signed in the name of the Company by two Officers, one of whom must be the Company’s principal executive officer,
principal financial officer or principal accounting officer.
“Corporate Trust Office”
means the office of the Trustee at which at any particular time its corporate trust business shall be principally administered.
“Default” means
any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default.
“Depositary” means,
with respect to the Securities of any Series issuable or issued in whole or in part in the form of one or more Global Securities,
the person designated as Depositary for such Series by the Company, which Depositary shall be a clearing agency registered under
the Exchange Act; and if at any time there is more than one such person, “Depositary” as used with respect to the Securities
of any Series shall mean the Depositary with respect to the Securities of such Series.
“Discount Security”
means any Security that provides for an amount less than the stated principal amount thereof to be due and payable upon declaration of
acceleration of the maturity thereof pursuant to Section 6.2.
“Dollars” and “$”
means the currency of The United States of America.
“ECU” means the
European Currency Unit as determined by the Commission of the European Union.
“EDGAR” means the
SEC’s Electronic Data Gathering, Analysis and Retrieval system or any successor thereto.
“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).
“Exchange Act” means
the Securities Exchange Act of 1934, as amended.
“Foreign Currency”
means any currency or currency unit issued by a government other than the government of The United States of America.
“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 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.
“Global Security”
or “Global Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in
the name of such Depositary or nominee.
“Government Securities”
means direct obligations of, or obligations guaranteed by, the United States of America, and the payment for which the United States pledges
its full faith and credit.
“Guarantee” means
a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect,
in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in
respect thereof, of all or any part of any Indebtedness (whether arising by virtue of partnership arrangements, or by agreements to keep-well,
to purchase assets, goods, securities or services, to take or pay or to maintain financial statement conditions or otherwise); provided
that standard contractual indemnities which do not relate to Indebtedness shall not be considered a Guarantee.
“Hedging Obligations”
means, with respect to any specified person, the obligations of such person under:
(1) currency
exchange, interest rate or commodity swap agreements, currency exchange, interest rate or commodity cap agreements and currency exchange,
interest rate or commodity collar agreements, and
(2) (i) agreements
or arrangements designed to protect such Person against fluctuations in currency exchange, interest rates, commodity prices or commodity
transportation or transmission pricing or availability; (ii) any netting arrangements, power purchase and sale agreements, fuel purchase
and sale agreements, swaps, options and other agreements, in each case, that fluctuate in value with fluctuations in energy, power or
gas prices; and (iii) agreements or arrangements for commercial or trading activities with respect to the purchase, transmission,
distribution, sale, lease or hedge of any energy related commodity or service.
“Holder” or “Securityholder”
means a person in whose name a Security is registered.
“Indebtedness” means,
with respect to any specified person, any indebtedness of such person (excluding accrued expenses and trade payables, except as provided
in clause (5) below, and surety bonds), whether or not contingent:
(1) in
respect of borrowed money;
(2) evidenced
by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof);
(3) in
respect of banker’s acceptances;
(4) representing
Capital Lease Obligations or Attributable Debt in respect of sale and leaseback transactions;
(5) representing
the balance of deferred and unpaid purchase price of any property or services with a scheduled due date more than six months after such
property is acquired or such services are completed; or
(6) representing
the net amount owing under any Hedging Obligations,
if and to the extent any of the preceding items
(other than letters of credit, Attributable Debt and Hedging Obligations) would appear as a liability upon a balance sheet of the specified
person prepared in accordance with GAAP. In addition, the term “Indebtedness” includes all Indebtedness of others secured
by a Lien on any asset of the specified person (whether or not such Indebtedness is assumed by the specified person) and, to the extent
not otherwise included, the Guarantee by the specified person of any Indebtedness of any other person; provided, that the amount of such
Indebtedness shall be deemed not to exceed the lesser of the amount secured by such Lien and the value of the person’s property
securing such Lien.
“Indenture” means
this Indenture as amended or supplemented from time to time and shall include the form and terms of particular Series of Securities
established as contemplated hereunder.
“interest” with
respect to any Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Lien” means, with
respect to any asset:
(1) any
mortgage, deed of trust, deed to secure debt, lien (statutory or otherwise), pledge, hypothecation, encumbrance, restriction, collateral
assignment, charge or security interest in, on or of such asset;
(2) the
interest of a vendor or a lessor under any conditional sale agreement, capital lease or title retention agreement (or any financing lease
having substantially the same economic effect as any of the foregoing) relating to such asset; and
(3) in
the case of Equity Interests or debt securities, any purchase option, call or similar right of a third party with respect to such Equity
Interests or debt securities.
“Maturity,” when
used with respect to any Security or installment of principal thereof, means the date on which the principal of such Security or such
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, notice of option to elect repayment or otherwise.
“Officer”
means, with respect to any person, the Chairman of the Board of Directors, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Chief Accounting Officer, the Treasurer, any Assistant Treasurer, the Secretary, the Controller,
Assistant Secretary or any Vice President of such person.
“Officers’ Certificate”
means a certificate signed on behalf of the Company by two Officers of the Company, one of whom must 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 11.5
hereof.
“Opinion of Counsel”
means an opinion from legal counsel who is reasonably acceptable to the Trustee, that meets the requirements of Section 11.5 hereof.
The counsel may be an employee of or counsel to the Company, any Subsidiary of the Company or the Trustee.
“person” means any
individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited liability
company or government or other entity.
“principal” of a
Security means the principal of the Security plus, when appropriate, the premium, if any, on, and any Additional Amounts in respect of,
the Security.
“Responsible Officer”
means, when used with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee (or any successor group of
the Trustee) or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because
of his knowledge of and familiarity with the particular subject.
“SEC” means the
Securities and Exchange Commission.
“Securities” means
the debentures, notes or other debt instruments of the Company of any Series authenticated and delivered under this Indenture.
“Series” or “Series of
Securities” means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.1 and
2.2 hereof.
“Stated Maturity”
means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest
or principal was scheduled to be paid in the documentation governing such Indebtedness as of the date of the indenture, and will not include
any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the
payment thereof.
“Subsidiary” means,
with respect to any specified person:
(1) any
corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled
(without regard to the occurrence of any contingency and after giving effect to any voting agreement or stockholders’ agreement
that effectively transfers voting power) to vote in the election of directors, managers or trustees of the corporation, association or
other business entity is at the time owned or controlled, directly or indirectly, by that person or one or more of the other Subsidiaries
of that person (or a combination thereof); and
(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).
“TIA” means the
Trust Indenture Act of 1939 (15 U.S. Code §§ 77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date, “TIA” means, to the extent required by any such
amendment, the Trust Indenture Act as so amended.
“Trustee” means
the person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean 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.
“Voting Stock” of
any person as of any date means the Capital Stock of such person that is at the time entitled to vote in the election of the Board of
Directors of such person.
Section 1.2 Other
Definitions.
| TERM | |
DEFINED IN
SECTION |
| “Bankruptcy Law” | |
6.1 |
| “Custodian” | |
6.1 |
| “Event of Default” | |
6.1 |
| “Legal Holiday” | |
11.7 |
| “mandatory sinking fund payment” | |
12.1 |
| “optional sinking fund payment” | |
12.1 |
| “Paying Agent” | |
2.4 |
| “Registrar” | |
2.4 |
| “Service Agent” | |
2.4 |
Section 1.3 Incorporation
by Reference of Trust Indenture Act.
Whenever this Indenture refers
to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
“Commission” means
the SEC.
“indenture securities”
means the Securities.
“indenture security holder”
means a Securityholder.
“indenture to be qualified”
means this Indenture.
“indenture trustee”
or “institutional trustee” means the Trustee.
“obligor” on the
indenture securities means the Company and any successor obligor upon the Securities.
All other terms used in this
Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by SEC rule under the TIA and not otherwise
defined herein are used herein as so defined.
Section 1.4 Rules of
Construction.
Unless the context otherwise
requires:
(a) a
term has the meaning assigned to it;
(b) an
accounting term not otherwise defined has the meaning assigned to it in accordance with generally accepted accounting principles;
(c) references
to “generally accepted accounting principles” and “GAAP” shall mean generally accepted accounting principles in
effect as of the time when and for the period as to which such accounting principles are to be applied;
(d) “or”
is not exclusive;
(e) words
in the singular include the plural, and in the plural include the singular;
(f) “including”
is not limiting; and
(g) provisions
apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1 Issuable
in Series.
The aggregate principal amount
of Securities that may be authenticated and delivered under this Indenture is unlimited. The Securities may be issued in one or more Series.
All Securities of a Series shall be identical except as may be set forth in a Board Resolution, a supplemental indenture or an Officers’
Certificate detailing the adoption of the terms thereof pursuant to the authority granted under a Board Resolution. In the case of Securities
of a Series to be issued from time to time, the Board Resolution, Officers’ Certificate or supplemental indenture detailing
the adoption of the terms thereof pursuant to authority granted under a Board Resolution may provide for the method by which specified
terms (such as interest rate, maturity date, record date or date from which interest shall accrue) are to be determined. Securities may
differ between Series in respect of any matters, provided that all Series of Securities shall be equally and ratably entitled
to the benefits of the Indenture.
Section 2.2 Establishment
of Terms of Series of Securities.
At or prior to the issuance
of any Securities within a Series, the following shall be established (as to the Series generally, in the case of Subsection 2.2.1
and either as to such Securities within the Series or as to the Series generally in the case of Subsections 2.2.2 through 2.2.21)
by or pursuant to a Board Resolution, and set forth or determined in the manner provided in a Board Resolution, supplemental indenture
or an Officers’ Certificate pursuant to authority granted under a Board Resolution:
2.2.1 the
title of the Series (which shall distinguish the Securities of that particular Series from the Securities of any other Series);
2.2.2 the
price or prices (expressed as a percentage of the principal amount thereof) at which the Securities of the Series will be issued;
2.2.3 any
limit upon the aggregate principal amount of the Securities of the Series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities
of the Series pursuant to Section 2.7, 2.8, 2.11, 3.6 or 9.6);
2.2.4 the
date or dates on which the principal of the Securities of the Series is payable;
2.2.5 the
rate or rates (which may be fixed or variable) per annum or, if applicable, the method used to determine such rate or rates (including,
but not limited to, any commodity, commodity index, stock exchange index or financial index) at which the Securities of the Series shall
bear interest, if any, the date or dates from which such interest, if any, shall accrue, the date or dates on which such interest, if
any, shall commence and be payable and any regular record date for the interest payable on any interest payment date; provided, however,
that the method used to determine such rate or rates at which the Securities of the Series shall bear interest must be acceptable
to the Trustee;
2.2.6 the
place or places where the principal of and interest, if any, on the Securities of the Series shall be payable, where the Securities
of such Series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in
respect of the Securities of such Series and this Indenture may be served, and the method of such payment, if by wire transfer, mail
or other means;
2.2.7 if
applicable, the period or periods within which, the price or prices at which and the terms and conditions upon which the Securities of
the Series may be redeemed, in whole or in part, at the option of the Company;
2.2.8 the
obligation, if any, of the Company to redeem or purchase the Securities of the Series pursuant to any sinking fund or analogous provisions
or at the option of a Holder thereof and the period or periods within which, the price or prices at which and the terms and conditions
upon which Securities of the Series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
2.2.9 the
dates, if any, on which and the price or prices at which the Securities of the Series will be repurchased by the Company at the option
of the Holders thereof and other detailed terms and provisions of such repurchase obligations;
2.2.10 if
other than denominations of $2,000 and any integral multiple of $1,000 in excess thereof, the denominations in which the Securities of
the Series shall be issuable;
2.2.11 whether
the Securities of the Series are to be issued in whole or in part in the form of one or more Global Securities and, in such case,
the Depositary for such Global Security or Global Securities, and the terms and conditions, if any, upon which interests in such Global
Security or Global Securities may be exchanged in whole or in part for the individual securities represented thereby in definitive form
registered in the name or names of Persons other than such Depositary or a nominee or nominees thereof;
2.2.12 if
other than the principal amount thereof, the portion of the principal amount of the Securities of the Series that shall be payable
upon declaration of acceleration of the maturity thereof pursuant to Section 6.2;
2.2.13 the
currency of denomination of the Securities of the Series, which may be Dollars or any Foreign Currency, including, but not limited to,
the ECU, and if such currency of denomination is a composite currency other than the ECU, the agency or organization, if any, responsible
for overseeing such composite currency;
2.2.14 the
designation of the currency, currencies or currency units in which payment of the principal of and interest, if any, on the Securities
of the Series will be made;
2.2.15 if
payments of principal of or interest, if any, on the Securities of the Series are to be made in one or more currencies or currency
units other than that or those in which such Securities are denominated, the manner in which the exchange rate with respect to such payments
will be determined;
2.2.16 the
manner in which the amounts of payment of principal of or interest, if any, on the Securities of the Series will be determined, if
such amounts may be determined by reference to an index based on a currency or currencies or by reference to a commodity, commodity index,
stock exchange index or financial index;
2.2.17 the
provisions, if any, relating to any security or guarantee provided for the Securities of the Series, and any subordination in right of
payment, if any, of the Securities of the Series;
2.2.18 any
addition to or change in the Events of Default which applies to any Securities of the Series and any change in the right of the Trustee
or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 6.2;
2.2.19 any
addition to or change in the covenants set forth in Articles IV or V which applies to Securities of the Series;
2.2.20 any
other terms of the Securities of the Series (which may modify or delete any provision of this Indenture insofar as it applies to
such Series); and
2.2.21 any
depositories, interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such Series if
other than those appointed herein.
All Securities of any one Series need
not be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by or
pursuant to the Board Resolution, supplemental indenture hereto or Officers’ Certificate referred to above, and the authorized principal
amount of any Series may not be increased to provide for issuances of additional Securities of such Series, unless otherwise provided
in such Board Resolution, supplemental indenture or Officers’ Certificate.
Section 2.3 Execution
and Authentication.
One Officer shall sign the Securities
for the Company by manual or facsimile signature.
If an Officer whose signature
is on a Security no longer holds that office at the time the Security is authenticated, the Security shall nevertheless be valid.
A Security shall not be valid
until authenticated by the manual signature of the Trustee or an authenticating agent. The signature shall be conclusive evidence that
the Security has been authenticated under this Indenture.
The Trustee shall at any time,
and from time to time, authenticate Securities for original issue in the principal amount provided in the Board Resolution, supplemental
indenture hereto or Officers’ Certificate, upon receipt by the Trustee of a Company Order. Each Security shall be dated the date
of its authentication unless otherwise provided by a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate.
The aggregate principal amount
of Securities of any Series outstanding at any time may not exceed any limit upon the maximum principal amount for such Series set
forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to Section 2.2, except
as provided in Section 2.8.
Prior to the issuance of Securities
of any Series, the Trustee shall have received and (subject to Section 7.2) shall be fully protected in relying on: (a) the
Board Resolution, supplemental indenture hereto or Officers’ Certificate establishing the form of the Securities of that Series or
of Securities within that Series and the terms of the Securities of that Series or of Securities within that Series, (b) an
Officers’ Certificate complying with Section 11.4, and (c) an Opinion of Counsel complying with Section 11.4.
The Trustee shall have the right
to decline to authenticate and deliver any Securities of such Series: (a) if the Trustee, being advised by counsel, determines that
such action may not be taken lawfully; or (b) if the Trustee in good faith shall determine that such action could expose the Trustee
to personal liability.
The Trustee may appoint an authenticating
agent acceptable to the Company to authenticate Securities. An authenticating agent may authenticate Securities whenever the Trustee may
do so. Each reference in this Indenture to authentication by the Trustee includes authentication by such agent. An authenticating agent
has the same rights as an Agent to deal with Holders, the Company or an Affiliate of the Company.
Section 2.4 Registrar
and Paying Agent.
The Company shall maintain,
with respect to each Series of Securities, at the place or places specified with respect to such Series pursuant to Section 2.2,
an office or agency where Securities of such Series may be presented or surrendered for payment (“Paying Agent”), where
Securities of such Series may be surrendered for registration of transfer or exchange (“Registrar”) and where notices
and demands to or upon the Company in respect of the Securities of such Series and this Indenture may be served (“Service Agent”).
The Registrar shall keep a register with respect to each Series of Securities and to their transfer and exchange. The Company will
give prompt written notice to the Trustee of the name and address, and any change in the name or address, of each Registrar, Paying Agent
or Service Agent. If at any time the Company shall fail to maintain any such required Registrar, Paying Agent or Service Agent or shall
fail to furnish the Trustee with the name and address thereof, such presentations, surrenders, notices and demands may be made or served
at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands; provided, however, that the Trustee shall not serve as an agent or officer for the purpose of service
of process on behalf of the Company.
The Company may also from time
to time designate one or more co-registrars, additional paying agents or additional service agents and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
to maintain a Registrar, Paying Agent and Service Agent in each place so specified pursuant to Section 2.2 for Securities of any
Series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of
any change in the name or address of any such co-registrar, additional paying agent or additional service agent. The term “Registrar”
includes any co-registrar; the term “Paying Agent” includes any additional paying agent; and the term “Service Agent”
includes any additional service agent.
The Company hereby appoints
the Trustee as the initial Registrar, Paying Agent and Service Agent for each Series unless another Registrar, Paying Agent or Service
Agent, as the case may be, is appointed prior to the time Securities of that Series are first issued.
Section 2.5 Paying
Agent to Hold Money in Trust.
The Company shall require each
Paying Agent other than the Trustee to agree in writing that the Paying Agent will hold in trust, for the benefit of Securityholders of
any Series of Securities, or the Trustee, all money held by the Paying Agent for the payment of principal of or interest on the Series of
Securities, and will notify the Trustee of any default by the Company in making any such payment. While any such default continues, the
Trustee may require a Paying Agent to pay all money held by it to the Trustee. The Company at any time may require a Paying Agent to pay
all money held by it to the Trustee. Upon payment over to the Trustee, the Paying Agent (if other than the Company or a Subsidiary of
the Company) shall have no further liability for the money. If the Company or a Subsidiary of the Company acts as Paying Agent, it shall
segregate and hold in a separate trust fund for the benefit of Securityholders of any Series of Securities all money held by it as
Paying Agent.
Section 2.6 Securityholder
Lists.
The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to it of the names and addresses of Securityholders of each
Series of Securities and shall otherwise comply with TIA § 312(a). If the Trustee is not the Registrar, the Company shall
furnish to the Trustee at least ten days before each payment date and at such other times as the Trustee may request in writing a list,
in such form and as of such date as the Trustee may reasonably require, of the names and addresses of Securityholders of each Series of
Securities.
Section 2.7 Transfer
and Exchange.
Where Securities of a Series are
presented to the Registrar or a co-registrar with a request to register a transfer or to exchange them for an equal principal amount of
Securities of the same Series, the Registrar shall register the transfer or make the exchange if the requirements set forth in this Indenture
and the Board Resolution, supplemental indenture hereto or Officers’ Certificate applicable to such Series of Securities are
met with respect to such transfer or exchange. To permit registrations of transfers and exchanges, the Trustee shall authenticate Securities
at the Registrar’s request. No service charge shall be made for any registration of transfer or exchange (except as otherwise expressly
permitted herein), but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable
in connection therewith (other than any such transfer tax or similar governmental charge payable upon exchanges pursuant to Sections 2.11,
3.6 or 9.6).
Neither the Company nor the
Registrar shall be required (a) to issue, register the transfer of, or exchange Securities of any Series for the period beginning
at the opening of business fifteen days immediately preceding the mailing of a notice of redemption of Securities of that Series selected
for redemption and ending at the close of business on the day of such mailing, or (b) to register the transfer of or exchange Securities
of any Series selected, called or being called for redemption as a whole or the portion being redeemed of any such Securities selected,
called or being called for redemption in part.
Notwithstanding anything contained
herein to the contrary, neither the Trustee nor the Registrar shall have any obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture, any Board Resolution, any supplemental indenture hereto, any
Officers’ Certificate, any Securities or under applicable law with respect to any transfer of any interest in any Securities 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 or the Board Resolution, supplemental indenture hereto or Officers’ Certificate
applicable to such Series of Securities, and to examine the same to determine substantial compliance as to form with the express
requirements hereof or thereof.
Section 2.8 Mutilated,
Destroyed, Lost and Stolen Securities.
If any mutilated Security is
surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered
to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such
security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and make available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of the same Series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing
a new Security, pay such Security.
Upon the issuance of any new
Security under this Section, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any Series issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled
to all the benefits of this Indenture equally and proportionately with any and all other Securities of that Series duly issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.
Section 2.9 Outstanding
Securities.
Subject to Section 2.10,
the Securities outstanding at any time are all the Securities authenticated by the Trustee except for those canceled by it, those delivered
to it for cancellation, those reductions in the interest on a Global Security effected by the Trustee in accordance with the provisions
hereof and those described in this Section as not outstanding.
If a Security is replaced pursuant
to Section 2.8, it ceases to be outstanding until the Trustee receives proof satisfactory to it that the replaced Security is held
by a bona fide purchaser.
If the Paying Agent (other than
the Company, a Subsidiary of the Company or an Affiliate of the Company) holds on a redemption date or the Maturity of Securities of a
Series money sufficient to pay such Securities payable on that date, then on and after that date such Securities of the Series shall
cease to be outstanding and interest on such Securities shall cease to accrue.
Notwithstanding Section 2.10,
a Security does not cease to be outstanding because the Company or an Affiliate of the Company holds the Security.
In determining whether the Holders
of the requisite principal amount of outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder, the principal amount of a Discount Security that shall be deemed to be outstanding for such purposes shall be the
amount of the principal thereof that would be due and payable as of the date of such determination upon a declaration of acceleration
of the Maturity thereof pursuant to Section 6.2.
Section 2.10 Treasury
Securities.
In determining whether the Holders
of the required principal amount of Securities of a Series have concurred in any request, demand, authorization, direction, notice,
consent or waiver Securities of a Series owned by the Company or an Affiliate of the Company shall be disregarded, except that for
the purposes of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction, notice,
consent or waiver only Securities of a Series that the Trustee has received written notice from the Company, certifying that the
relevant Securities of such Series are owned by the Company or an Affiliate of the Company shall be so disregarded.
Upon request of the Trustee,
the Company shall promptly furnish to the Trustee an Officer’s Certificate listing and identifying all Securities, if any, known
by the Company to be owned or held by or for the account of the Company or an Affiliate of the Company, and the Trustee shall be entitled
to accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the fact that all Securities not
listed therein are outstanding for the purpose of any such determination.
Section 2.11 Temporary
Securities.
Until definitive Securities
are ready for delivery, the Company may prepare and the Trustee shall authenticate temporary Securities upon a Company Order. Temporary
Securities shall be substantially in the form of definitive Securities but may have variations that the Company considers appropriate
for temporary Securities. Without unreasonable delay, the Company shall prepare and the Trustee upon request shall authenticate definitive
Securities of the same Series and date of maturity in exchange for temporary Securities. Until so exchanged, temporary securities
shall have the same rights under this Indenture as the definitive Securities.
Section 2.12 Cancellation.
The Company at any time may
deliver Securities to the Trustee for cancellation. The Registrar and the Paying Agent shall forward to the Trustee any Securities surrendered
to them for registration of transfer, exchange or payment. Upon written request of an Officer, the Trustee shall cancel all Securities
surrendered for transfer, exchange, payment, replacement or cancellation and deliver such canceled Securities to the Company, unless the
Company otherwise directs; provided that the Trustee shall not be required to destroy Securities. The Company may not issue new Securities
to replace Securities that it has paid or delivered to the Trustee for cancellation.
Section 2.13 Defaulted
Interest.
If the Company defaults in a
payment of interest on a Series of Securities, it shall pay the defaulted interest, plus, to the extent permitted by law, any interest
payable on the defaulted interest, to the persons who are Securityholders of the Series on a subsequent special record date. The
Company shall fix the record date and payment date. At least 10 days before the record date, the Company shall mail to the Trustee and
to each Securityholder of the Series a notice that states the record date, the payment date and the amount of interest to be paid.
The Company may pay defaulted interest in any other lawful manner.
Section 2.14 Global
Securities.
2.14.1 Terms
of Securities. A Board Resolution, a supplemental indenture hereto or an Officers’ Certificate shall establish whether the Securities
of a Series shall be issued in whole or in part in the form of one or more Global Securities and the Depositary for such Global Security
or Securities.
2.14.2 Transfer
and Exchange. Notwithstanding any provisions to the contrary contained in Section 2.7 of the Indenture and in addition thereto,
any Global Security shall be exchangeable pursuant to Section 2.7 of the Indenture for Securities registered in the names of Holders
other than the Depositary for such Security or its nominee only if (i) such Depositary notifies the Company that it is unwilling
or unable to continue as Depositary for such Global Security or if at any time such Depositary ceases to be a clearing agency registered
under the Exchange Act, and, in either case, the Company fails to appoint a successor Depositary registered as a clearing agency under
the Exchange Act within 90 days of such event, (ii) the Company executes and delivers to the Trustee an Officers’ Certificate
to the effect that such Global Security shall be so exchangeable or (iii) an Event of Default with respect to the Securities represented
by such Global Security shall have happened and be continuing. Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as the Depositary shall direct in writing in an aggregate principal amount
equal to the principal amount of the Global Security with like tenor and terms.
Except as provided in this Section 2.14.2,
a Global Security may not be transferred except as a whole by the Depositary with respect to such Global Security to a nominee of such
Depositary, by a nominee of such Depositary to such Depositary or another nominee of such Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.
2.14.3 Legend.
Any Global Security issued hereunder shall bear a legend in substantially the following form:
“This Security is a Global
Security within the meaning of the Indenture hereinafter referred to and is registered in the name of the Depositary or a nominee of the
Depositary. This Security is exchangeable for Securities registered in the name of a person other than the Depositary or its nominee only
in the limited circumstances described in the Indenture, and may not be transferred except as a whole by the Depositary to a nominee of
the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such
nominee to a successor Depositary or a nominee of such a successor Depositary.”
2.14.4 Acts
of Holders. The Depositary, as a Holder, may appoint agents and otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a Holder is entitled to give or take under the Indenture.
2.14.5 Payments.
Notwithstanding the other provisions of this Indenture, unless otherwise specified as contemplated by Section 2.2, payment of the
principal of and interest, if any, on any Global Security shall be made to the Holder thereof.
2.14.6 Consents,
Declaration and Directions. Except as provided in Section 2.14.5, the Company, the Trustee and any Agent shall treat a person
as the Holder of such principal amount of outstanding Securities of such Series represented by a Global Security as shall be specified
in a written statement of the Depositary with respect to such Global Security, for purposes of obtaining any consents, declarations, waivers
or directions required to be given by the Holders pursuant to this Indenture.
2.14.7 General
Provisions for Book-Entry Securities. Members of, or participants in, the Depositary (“Participants”) shall have no rights
under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as its custodian, or under
the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner of the Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished
by the Depositary or impair, as between the Depositary and Participants, the operation of customary practices governing the exercise of
the rights of a Holder of any Global Security. All notices and communications to be given to the Holders and all payments to be made to
Holders in respect of the Global Securities shall be given or made only to or upon the order of the registered Holders (which shall be
the Depositary or its nominee). The rights of beneficial owners in any Global Security shall be exercised only through the Depositary,
subject to its applicable rules and procedures. The Trustee, Registrar, Paying Agent and Service Agent may each rely and shall be
fully protected in relying upon information furnished by the Depositary with respect to its agent members and other members, participants
and any beneficial owners.
Section 2.15 CUSIP
Numbers.
The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness
of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only
on the other elements of identification printed on the Securities, and any such redemption shall not be affected by any defect in or omission
of such numbers.
ARTICLE III.
REDEMPTION
Section 3.1 Notice
to Trustee.
The Company may, with respect
to any Series of Securities, reserve the right to redeem and pay the Series of Securities or may covenant to redeem and pay
the Series of Securities or any part thereof prior to the Stated Maturity thereof at such time and on such terms as provided for
in such Securities. If a Series of Securities is redeemable and the Company wants or is obligated to redeem prior to the Stated Maturity
thereof all or part of the Series of Securities pursuant to the terms of such Securities, it shall notify the Trustee of the redemption
date and the principal amount of Series of Securities to be redeemed. The Company shall give the notice at least 10 days, but not
more than 60 days, before the redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2 Selection
of Securities to be Redeemed or Repurchased.
Unless otherwise indicated for
a particular Series by a Board Resolution, a supplemental indenture or an Officers’ Certificate, if less than all the Securities
of a Series are to be redeemed or repurchased, the Trustee shall select the Securities of the Series to be redeemed or repurchased
on a pro rata basis unless otherwise required by law, rules of the applicable Depositary or applicable stock exchange requirements.
In the event of partial redemption
or purchase by lot, the Trustee shall make the selection from Securities of the Series outstanding not previously called for redemption
or repurchase. The Trustee may select for redemption or repurchase portions of the principal of Securities of the Series that have
denominations larger than $2,000. Securities of the Series and portions of them it selects shall be in amounts of $2,000 or whole
multiples of $1,000 in excess of $2,000 or, with respect to Securities of any Series issuable in other denominations pursuant to
Section 2.2.10, the minimum principal denomination for each Series and integral multiples thereof. Provisions of this Indenture
that apply to Securities of a Series called for redemption or repurchase also apply to portions of Securities of that Series called
for redemption or repurchase.
Section 3.3 Notice
of Redemption.
At least 10 days but not more
than 60 days before a redemption date, the Company shall mail a notice of redemption by first-class mail to each Holder whose Securities
are to be redeemed, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued
in connection with a defeasance of the Securities or a satisfaction and discharge of this Indenture pursuant to Articles 8 or 10 hereof.
The notice shall identify the
Securities of the Series to be redeemed and shall state:
(a) the
redemption date;
(b) the
redemption price;
(c) the
name and address of the Paying Agent;
(d) that
Securities of the Series called for redemption must be surrendered to the Paying Agent to collect the redemption price;
(e) if
any Security is being redeemed in part, the portion of the principal amount of such Security to be redeemed and that, after the redemption
date upon surrender of such Security, a new Security or Securities in principal amount equal to the unredeemed portion will be issued
upon cancellation of the original Security;
(f) that
interest on Securities of the Series called for redemption ceases to accrue on and after the redemption date;
(g) the
CUSIP number, if any; and
(h) any
other information as may be required by the terms of the particular Series or the Securities of a Series being redeemed.
At the Company’s request,
the Trustee shall give the notice of redemption in the Company’s name and at its expense provided, however, that the Company has
delivered to the Trustee, at least four business days prior to the date on which notice of redemption is to be delivered to the Holders
pursuant to this Section 3.3 (or such shorter period as the Trustee in its sole discretion may allow), a written request by an Officer
requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the preceding
paragraph.
Section 3.4 Effect
of Notice of Redemption.
Once notice of redemption is
mailed or published as provided in Section 3.3, Securities of a Series called for redemption become due and payable on the redemption
date and at the redemption price. Notwithstanding the foregoing, any redemption and notice thereof may, in the Company’s discretion,
be subject to the satisfaction of one or more conditions precedent. If a redemption notice is subject to satisfaction of one or more conditions
precedent, such notice will state that, at the Company’s discretion, the redemption date may be delayed until such time as any or
all such conditions are satisfied, or such redemption may not occur and such notice may be rescinded in the event that any or all such
conditions have not been satisfied by the redemption date, or by the redemption date so delayed.
Upon surrender to the Paying
Agent, such Securities shall be paid at the redemption price plus accrued interest to the redemption date; provided that installments
of interest whose Stated Maturity is on or prior to the redemption date shall be payable to the Holders of such Securities (or one or
more predecessor Securities) registered at the close of business on the relevant record date therefor according to their terms and the
terms of this Indenture.
Section 3.5 Deposit
of Redemption Price.
One Business Day prior to the
redemption date, the Company shall deposit with the Paying Agent money sufficient to pay the redemption price of and accrued interest,
if any, on all Securities to be redeemed on that date.
Section 3.6 Securities
Redeemed in Part.
Upon surrender of a Security
that is redeemed in part, the Trustee shall authenticate for the Holder a new Security of the same Series and the same maturity equal
in principal amount to the unredeemed portion of the Security surrendered.
ARTICLE IV.
COVENANTS
Section 4.1 Payment
of Principal and Interest.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will pay or cause to be paid the principal of, premium, if any,
and interest on, the Securities of that Series on the dates and in the manner provided in such Securities. Principal, premium, if
any, and interest on any Series of Securities will be considered paid on the date due if the Paying Agent, if other than the Company
or a Subsidiary thereof, holds as of 10:00 a.m. Eastern Time on the due date money deposited by the Company in immediately available
funds and designated for and sufficient to pay all principal, premium, if any, and interest then due.
Section 4.2 Maintenance
of Office or Agency.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it will maintain an office or agency (which may be an office of
the Trustee for such Securities or an affiliate of such Trustee, Registrar for such Securities or co-registrar) where such Securities
may be surrendered for registration of transfer or for exchange and where notices and demands to or upon the Company in respect of such
Securities and this Indenture may be served. The Company will give prompt written notice to the Trustee for such Securities of the location,
and any change in the location, of such office or agency. If at any time the Company fails to maintain any such required office or agency
or fails to furnish such Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at
the Corporate Trust Office of such Trustee; provided, however, that the Trustee shall not serve as an agent or officer for the purpose
of service of process on behalf of the Company.
The Company may also from time
to time designate one or more other offices or agencies where Securities 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 will in any manner relieve
the Company of its obligation described in the preceding paragraph. The Company will give prompt written notice to the Trustee for such
Series of Securities of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to each Series of
Securities, the Company hereby designates the Corporate Trust Office of the Trustee as one such office or agency of the Company in accordance
with Section 2.4 hereof.
Section 4.3 Reports.
The Company shall file with
the Trustee and the SEC, and transmit to Holders, such information, documents and other reports, and such summaries thereof, as may be
required pursuant to the TIA at the times and in the manner provided in the TIA; provided that, unless available on EDGAR, any such information,
documents or reports required to be filed with the SEC pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with
the Trustee within 30 days after the same is filed with the SEC.
Section 4.4 Compliance
Certificate.
(a) The
Company and each guarantor of any Series of Securities (to the extent that such guarantor is so required under the TIA) shall deliver
to the Trustee with respect to such Series, within 90 days after the end of each fiscal year, an Officers’ Certificate stating that
a review of the activities of the Company and its Subsidiaries during the preceding fiscal year has been made under the supervision of
the signing Officers with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under
this Indenture, and further stating, as to each such Officer signing such certificate, that to the best of his or her knowledge the Company
has kept, observed, performed and fulfilled each and every covenant contained in this Indenture and is not in default in the performance
or observance of any of the terms, provisions and conditions of this Indenture (or, if a Default or Event of Default has occurred, describing
all such Defaults or Events of Default of which he or she may have knowledge and what action the Company is taking or proposes to take
with respect thereto) and that to the best of his or her knowledge no event has occurred and remains in existence by reason of which payments
on account of the principal of or interest, if any, on the Securities is prohibited or if such event has occurred, a description of the
event and what action the Company is taking or proposes to take with respect thereto.
(b) So
long as any of Series of Securities are outstanding, the Company will deliver to the Trustee with respect to such Series, forthwith
upon any Officer becoming aware of any Default or Event of Default, an Officers’ Certificate specifying such Default or Event of
Default and what action the Company is taking or proposes to take with respect thereto.
Section 4.5 Taxes.
The Company will pay, and will
cause each of its Subsidiaries to pay, prior to delinquency, all material taxes, assessments, and governmental levies except such as are
contested in good faith and by appropriate proceedings or where the failure to effect such payment is not adverse in any material respect
to the Holders of such Securities.
Section 4.6 Stay,
Extension and Usury Laws.
The Company covenants and agrees
(to the extent that it may lawfully do so), that it will not, and each guarantor of such Securities will not, at any time insist upon,
plead, or in any manner whatsoever claim or take the benefit or advantage of, any stay, extension or usury law wherever enacted, now or
at any time hereafter in force, that may affect the covenants or the performance of this Indenture; and the Company and each of such guarantors
(to the extent that it may lawfully do so), as applicable, hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not, by resort to any such law, hinder, delay or impede the execution of any power herein granted to the Trustee for such
Securities, but will suffer and permit the execution of every such power as though no such law has been enacted.
Section 4.7 Corporate
Existence.
Subject to Article V hereof,
the Company shall do or cause to be done all things necessary to preserve and keep in full force and effect:
(1) its
corporate existence, and the corporate, partnership or other existence of each of its Subsidiaries, in accordance with the respective
organizational documents (as the same may be amended from time to time) of the Company or any such Subsidiary; and
(2) the
rights (charter and statutory), licenses and franchises of the Company and its Subsidiaries provided, however, that the Company shall
not be required to preserve any such right, license or franchise, or the corporate, partnership or other existence of any of its Subsidiaries,
if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company
and its Subsidiaries, taken as a whole, and that the loss thereof is not adverse in any material respect to the Holders of such Securities.
ARTICLE V.
SUCCESSORS
Section 5.1 Merger,
Consolidation, or Sale of Assets.
The Company covenants and agrees
for the benefit of the Holders of each Series of Securities that it shall not, directly or indirectly: (i) consolidate or merge
with or into another person (whether or not the Company is the surviving corporation); or (ii) sell, assign, transfer, convey or
otherwise dispose of all or substantially all of the properties or assets of the Company and its Subsidiaries taken as a whole, in one
or more related transactions, to another person, unless:
(1) either:
(A) the
Company is the surviving corporation; or
(B) the
person formed by or surviving any such consolidation or merger (if other than the Company) or to which such sale, assignment, transfer,
conveyance or other disposition has been made is a corporation, partnership or limited liability company organized or existing under the
laws of the United States, any state of the United States or the District of Columbia;
(2) the
person formed by or surviving any such consolidation or merger (if other than the Company) or the person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the Company under such Securities and this Indenture
pursuant to agreements reasonably satisfactory to the Trustee for such Securities; and
(3) immediately
after such transaction, no Default or Event of Default exists.
In addition, the Company will
not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other
person. This Section 5.1 will not apply to:
(4) a
merger of the Company with an Affiliate solely for the purpose of reincorporating the Company in another jurisdiction or forming a direct
holding company of the Company; or
(5) any
sale, transfer, assignment, conveyance, lease or other disposition of assets between or among the Company and its Subsidiaries, including
by way of merger or consolidation.
Section 5.2 Successor
Corporation Substituted.
Upon any consolidation or merger,
or any sale, assignment, transfer, lease, conveyance or other disposition of all or substantially all of the properties or assets of the
Company in a transaction that is subject to, and that complies with the provisions of, Section 5.01 hereof, the successor person
formed by such consolidation or into or with which the Company is merged or to which such sale, assignment, transfer, lease, conveyance
or other disposition is made shall succeed to, and be substituted for (so that from and after the date of such consolidation, merger,
sale, assignment, transfer, lease, conveyance or other disposition, the provisions of this Indenture referring to the “Company”
shall refer instead to the successor person and not to the Company), 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; provided, however, that the predecessor
Company shall not be relieved from the obligation to pay the principal of and interest on any Series of Securities except in the
case of a sale of all of the Company’s assets in a transaction that is subject to, and that complies with the provisions of, Section 5.1
hereof.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1 Events
of Default.
“Event of Default,”
wherever used herein with respect to Securities of any Series, means any one of the following events, unless in the establishing Board
Resolution, supplemental indenture or Officers’ Certificate, it is provided that such Series shall not have the benefit of
said Event of Default:
(a) default
in the payment of any interest on any Security of that Series when it becomes due and payable, and continuance of such default for
a period of 60 days; or
(b) default
in payment when due of the principal of, or premium, if any, on any Security of that Series; or
(c) default
in the deposit of any sinking fund payment, when and as due in respect of any Security of that Series; or
(d) default
in the performance or breach of any covenant or warranty of the Company in this Indenture (other than a covenant or warranty that has
been included in this Indenture solely for the benefit of Series of Securities other than that Series), which default continues uncured
for a period of 90 days after written notice given by the Trustee for such Securities or Holders of such Securities; or
(e) the
Company pursuant to or within the meaning of any Bankruptcy Law:
(i) commences
a voluntary case,
(ii) consents
to the entry of an order for relief against it in an involuntary case,
(iii) consents
to the appointment of a Custodian of it or for all or substantially all of its property,
(iv) makes
a general assignment for the benefit of its creditors; or
(f) a
court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(i) is
for relief against the Company in an involuntary case,
(ii) appoints
a Custodian of the Company or for all or substantially all of its property, or
(iii) orders
the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 days; or
(g) any
other Event of Default provided with respect to Securities of that Series, which is specified in a Board Resolution, a supplemental indenture
hereto or an Officers’ Certificate, in accordance with Section 2.2.18.
The term “Bankruptcy Law”
means title 11, U.S. Code or any similar Federal or State law for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidator or similar official under any Bankruptcy Law.
Section 6.2 Acceleration.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing (other than an Event of Default referred to
in Section 6.1(e) or (f)) then in every such case the Trustee or the Holders of not less than 30% in principal amount of the
outstanding Securities of that Series may declare the principal amount (or, if any Securities of that Series are Discount Securities,
such portion of the principal amount as may be specified in the terms of such Securities) of and accrued and unpaid interest, if any,
on all of the Securities of that Series to be due and payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or specified amount) and accrued and unpaid interest, if any,
shall become immediately due and payable. If an Event of Default specified in Section 6.1(e) or (f) shall occur, the principal
amount (or specified amount) of and accrued and unpaid interest, if any, on all outstanding Securities shall ipso facto become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any Holder.
At any time after such a declaration
of acceleration with respect to any Series has been made, 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 the rescission
would not conflict with any judgment or decree and if all existing Events of Default (except nonpayment of principal, interest or premium
that has become due solely because of the acceleration) have been cured or waived.
No such rescission shall affect
any subsequent Default or impair any right consequent thereon.
Section 6.3 Other
Remedies.
If an Event of Default with
respect to Securities of any Series at the time outstanding occurs and is continuing, the Trustee may pursue any available remedy
to collect the payment of principal, premium, if any, and interest on such Securities or to enforce the performance of any provision of
such Securities or this Indenture.
The Trustee for such Securities
may maintain a proceeding even if it does not possess any of such Securities or does not produce any of them in the proceeding. A delay
or omission by the Trustee or any Holder of Securities in exercising any right or remedy accruing upon an Event of Default shall not impair
the right or remedy or constitute a waiver of or acquiescence in the Event of Default. All remedies are cumulative to the extent permitted
by law.
Section 6.4 Waiver
of Past Defaults.
Holders of not less than a majority
in aggregate principal amount of the then outstanding Securities of any Series by notice to the Trustee for such Securities may on
behalf of the Holders of all Securities of such Series waive an existing Default or Event of Default with respect to the Securities
of such Series and its consequences hereunder, except a continuing Default or Event of Default in the payment of the principal of,
premium, if any, or interest on, such Securities (including in connection with an offer to purchase); provided, however, that the Holders
of a majority in aggregate principal amount of the then outstanding Securities of any Series may rescind an acceleration of the Securities
of such Series and its consequences, including any related payment default that resulted from such acceleration. Upon any such waiver,
such Default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured for every purpose of
this Indenture; but no such waiver shall extend to any subsequent or other Default or Event of Default or impair any right consequent
thereon.
Section 6.5 Control
by Majority.
Holders of not less than a majority
in aggregate principal amount of the then outstanding Securities of any Series may direct the time, method and place of conducting
any proceeding for exercising any remedy available to the Trustee for such Securities or exercising any trust or power conferred on it.
However, the Trustee for any Series of Securities may refuse to follow any direction that conflicts with law or this Indenture that
such Trustee determines may be unduly prejudicial to the rights of other Holders of such Securities or that may involve the Trustee in
personal liability.
Section 6.6 Limitation
on Suits.
A Holder of any Series of
Securities may pursue a remedy with respect to this Indenture or such Securities only if:
(1) such
Holder gives to the Trustee for such Securities written notice that an Event of Default is continuing;
(2) Holders
of at least 30% in aggregate principal amount of the then outstanding Securities of such Series make a written request to the Trustee
for such Securities to pursue the remedy;
(3) such
Holder or Holders offer and, if requested, provide to the Trustee for such Securities security or indemnity reasonably satisfactory to
such Trustee against any loss, liability or expense;
(4) such
Trustee does not comply with the request within 60 days after receipt of the request and the offer of security or indemnity; and
(5) during
such 60-day period, Holders of a majority in aggregate principal amount of the then outstanding Securities of such Series do not
give such Trustee a direction inconsistent with such request.
A Holder of any Series of
Securities may not use this Indenture to prejudice the rights of another Holder of such Series of Securities or to obtain a preference
or priority over another Holder of a Securities of such Series.
Section 6.7 Rights
of Holders of Security to Receive Payment.
Notwithstanding any other provision
of this Indenture, the right of any Holder of a Security of any Series to receive payment of principal, premium, if any, and interest
on such Securities, on or after the respective due dates expressed in such Securities (including, if applicable, in connection with an
offer to purchase), or to bring suit for the enforcement of any such payment on or after such respective dates, shall not be impaired
or affected without the consent of such Holder.
Section 6.8 Collection
Suit by Trustee.
If an Event of Default specified
in Section 6.1(a), (b) or (c) hereof with respect to Securities of any Series occurs and is continuing, the Trustee
for such Securities is authorized to recover judgment in its own name and as trustee of an express trust against the Company for the whole
amount of principal of, premium, if any, and interest remaining unpaid on, such Securities and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of such Trustee, its agents and counsel.
Section 6.9 Trustee
May File Proofs of Claim.
The Trustee for each Series of
Securities is authorized to file such proofs of claim and other papers or documents as may be necessary or advisable in order to have
the claims of such Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of such Trustee,
its agents and counsel) and the Holders of the Securities for which it acts as trustee allowed in any judicial proceedings relative to
the Company (or any other obligor upon such Securities), its creditors or its property and shall be entitled and empowered to collect,
receive and distribute any money or other property payable or deliverable on any such claims and any Custodian in any such judicial proceeding
is hereby authorized by each Holder of such Securities to make such payments to such Trustee, and in the event that such Trustee shall
consent to the making of such payments directly to such Holders, to pay to such Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of such Trustee, its agents and counsel, and any other amounts due such Trustee under the Indenture.
To the extent that the payment of any such compensation, expenses, disbursements and advances of such Trustee, its agents and counsel,
and any other amounts due such Trustee (including, without limitation, under Section 7.7 hereof) out of the estate in any such proceeding,
shall be denied for any reason, payment of the same shall be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that such Holders may be entitled to receive in such proceeding whether in liquidation
or under any plan of reorganization or arrangement or otherwise. Nothing herein contained shall be deemed to authorize such Trustee to
authorize or consent to or accept or adopt on behalf of any Holder for which it acts as trustee any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of such Holder, or to authorize such Trustee to vote in respect of the
claim of any such Holder in any such proceeding.
Section 6.10 Priorities.
If the Trustee of any Series of
Securities collects any money pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee,
its agents and attorneys for amounts due under the Indenture, including payment of all reasonable compensation, expenses, indemnities
and liabilities incurred, and all advances made, by the Trustee and the costs and expenses of collection;
Second: to Holders of
such Securities for amounts due and unpaid on such Securities for principal, premium, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on such Securities for principal, premium, if any and interest, respectively;
and
Third: to the Company
or to such party as a court of competent jurisdiction shall direct.
The Trustee may fix a record
date and payment date for any payment to Holders of Securities pursuant to this Section 6.10.
Section 6.11 Undertaking
for Costs.
In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against any Trustee for any action taken or omitted by it as a trustee, a court
in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court
in its discretion may assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in the suit, having
due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 6.11 does not apply to
a suit by the Trustee, a suit by a Holder of a Security pursuant to Section 6.7 hereof, or a suit by Holders of more than 10% in
aggregate principal amount of the then outstanding Securities of any Series.
ARTICLE VII.
TRUSTEE
Section 7.1 Duties
of Trustee.
(a) If
an Event of Default with respect to any Series of Securities has occurred and is continuing, of which a Responsible Officer of the
Trustee has actual knowledge, the Trustee shall exercise the rights and powers vested in it by this Indenture and use the same degree
of care and skill in its exercise as a prudent person would exercise or use under the circumstances in the conduct of such person’s
own affairs.
(b) Except
during the continuance of an Event of Default of which a Responsible Officer of the Trustee has actual knowledge:
(i) The
Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations
shall be read into this Indenture against the Trustee.
(ii) In
the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon Officers’ Certificates or Opinions of Counsel furnished to the Trustee and conforming to the requirements
of this Indenture; however, in the case of any such Officers’ Certificates or Opinions of Counsel which by any provisions hereof
are specifically required to be furnished to the Trustee, the Trustee shall examine such Officers’ Certificates and Opinions of
Counsel to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of mathematical calculations or other facts stated therein).
(c) The
Trustee may not be relieved from liability for its own negligent action, its own negligent failure to act or its own willful misconduct,
except that:
(i) This
paragraph does not limit the effect of paragraph (b) of this Section.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts.
(iii) The
Trustee shall not be liable with respect to any action taken, suffered or omitted to be taken by it with respect to Securities of any
Series in good faith in accordance with the direction of the Holders of a majority in principal amount of the outstanding Securities
of such Series relating to the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred upon the Trustee, under this Indenture with respect to the Securities of such Series.
(d) Every
provision of this Indenture that in any way relates to the Trustee is subject to this Article VII.
(e) The
Trustee may refuse to perform any duty or exercise any right or power at the request or direction of any Holder(s) unless it receives
indemnity satisfactory to it against any loss, liability or expense.
(f) The
Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
(g) No
provision of this Indenture shall require the Trustee to risk its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment
of such funds or adequate indemnity against such risk is not reasonably assured to it.
(h) The
Paying Agent, the Registrar, the Service Agent and any authenticating agent shall be entitled to the same protections, indemnities and
immunities as are set forth in this Article VII with respect to the Trustee.
Section 7.2 Rights
of Trustee.
(a) The
Trustee may conclusively rely on and shall be fully protected in acting or refraining from acting upon any document believed by it to
be genuine and to have been signed or presented by the proper person. The Trustee need not investigate any fact or matter stated in the
document.
(b) Before
the Trustee acts or refrains from acting, it may require an Officers’ Certificate. The Trustee shall not be liable for any action
it takes or omits to take in good faith in reliance on such Officers’ Certificate.
(c) The
Trustee may act through agents, attorneys, custodians or nominees and shall not be responsible for the supervision of or any misconduct
or negligence of any agent, attorney, custodian or nominee appointed with due care. No Depositary shall be deemed an agent, attorney,
custodian or nominee of the Trustee and the Trustee shall not be responsible for any act or omission by any Depositary.
(d) The
Trustee shall not be liable for any action it takes or omits to take in good faith which it believes to be authorized or within its rights
or powers, provided that the Trustee’s conduct does not constitute negligence or bad faith.
(e) The
Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon.
(f) The
Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered to the Trustee security or indemnity satisfactory to it against
the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction.
(g) The
Trustee 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 in respect of any action taken, suffered or omitted by it hereunder without negligence and in good faith
and in reliance thereon.
(h) 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.
(i) The
Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office
of the Trustee, and such notice references the Securities generally or the Securities of a particular Series and this Indenture.
(j) In
no event shall the Trustee be liable for the selection of investments or for investment losses incurred thereon. The Trustee shall have
no liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or failure to
provide timely written direction.
(k) In
no event shall the Trustee be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including,
but not limited to, loss of profit), even if the Trustee has been advised of the likelihood of such loss or damage and regardless of the
form of action.
(l) In
no event shall the Trustee be liable for any failure or delay in the performance of its obligations under this Indenture or any related
documents because of circumstances beyond the Trustee’s control, including, but not limited to, a failure, termination, or suspension
of a clearing house, securities depositary, settlement system or central payment system in any applicable part of the world or acts of
God, flood, war (whether declared or undeclared), civil or military disturbances or hostilities, nuclear or natural catastrophes, political
unrest, explosion, severe weather or accident, earthquake, terrorism, fire, riot, labor disturbances, strikes or work stoppages for
any reason, embargo, government action, including any laws, ordinances, regulations or the like (whether domestic, federal, state, county
or municipal or foreign) which delay, restrict or prohibit the providing of the services contemplated by this Indenture or any related
documents, or the unavailability of communications or computer facilities, the failure of equipment or interruption of communications
or computer facilities, or the unavailability of the Federal Reserve Bank wire or telex or other wire or communication facility, or any
other causes beyond the Trustee’s control whether or not of the same class or kind as specified above.
(m) Delivery
of reports and other financial information related to the Company 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 Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to
rely conclusively on Officers’ Certificates).
(n) The
right of the Trustee to perform any discretionary act enumerated in this Indenture or any related document shall not be construed as a
duty.
(o) The
Trustee may earn compensation in the form of short-term interest on items like uncashed distribution checks (from the date issued until
the date cashed), funds that the Trustee is directed not to invest, deposits awaiting investment direction or received too late to be
invested overnight in previously directed investments.
Section 7.3 Individual
Rights of Trustee.
The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may otherwise deal with the Company or an Affiliate of the Company
with the same rights it would have if it were not Trustee. Any Agent may do the same with like rights. The Trustee is also subject to
Sections 7.10 and 7.11.
Section 7.4 Trustee’s
Disclaimer.
The Trustee shall not be responsible
for and makes no representation as to the validity or adequacy of this Indenture or the Securities, it shall not be accountable for the
Company’s use of the proceeds from the Securities, and it shall not be responsible for any statement in the Securities other than
its authentication.
Section 7.5 Notice
of Defaults.
If a Default or Event of Default
occurs and is continuing with respect to the Securities of any Series and if it is known to a Responsible Officer of the Trustee,
the Trustee shall mail to each Securityholder of the Securities of that Series notice of such Default or Event of Default within
90 days after a Responsible Officer of the Trustee has knowledge of such Default or Event of Default. Except in the case of a Default
or Event of Default in payment of principal of or interest on any Security of any Series, the Trustee may withhold the notice if it in
good faith determines that withholding the notice is in the interests of Securityholders of that Series.
Section 7.6 Reports
by Trustee to Holders.
Within 60 days after May 15
in each year, and for so long as any Securities remain outstanding, the Trustee shall transmit by mail to all Securityholders, as their
names and addresses appear on the register kept by the Registrar a brief report dated as of such May 15, in accordance with, and
to the extent required under, TIA § 313(a) (but if no event described in TIA §313(a) has occurred within the
twelve months preceding the reporting date, no report need be transmitted). The Trustee also will comply with TIA §313(b)(2) and
transmit by mail all reports as required by TIA §313(c).
A copy of each report at the
time of its mailing to Securityholders of any Series shall be mailed by the Trustee to the Company and filed by the Company with
the SEC and each stock exchange on which the Securities of that Series are listed. The Company shall promptly notify the Trustee
when Securities of any Series are listed on any stock exchange.
Section 7.7 Compensation
and Indemnity.
The Company shall pay to the
Trustee from time to time compensation for its services hereunder as the Company and the Trustee shall from time to time agree upon in
writing. 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 upon request for all reasonable out-of-pocket expenses incurred by it in addition to the compensation for
its services. Such expenses shall include the reasonable compensation and expenses of the Trustee’s agents and counsel.
The Company shall indemnify
each of the Trustee, any predecessor Trustee (including the cost of defending itself) and each of their respective officers, directors,
employees, shareholders and agents (collectively, the “Indemnified Parties”) against any loss, liability or expense, including
taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred by such Indemnified Parties directly
or indirectly arising out of or in connection with the acceptance or administration of its duties under this Indenture as Trustee or Agent;
provided, however, that the Company shall not be required to indemnify for any such loss, liability or expense resulting directly from
an Indemnified Party’s negligence, bad faith or willful misconduct as determined by a final judgment issued by a court of competent
jurisdiction. An Indemnified Party shall notify the Company promptly of any claim for which it may seek indemnity, provided however that
failure by such Indemnified Party to so notify the Company shall not relieve the Company of its obligations hereunder. The Company shall
defend the claim and the Indemnified Party shall cooperate in the defense. Each Indemnified Party may have one 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 or delayed.
To secure the Company’s
payment obligations in this Section 7.7, the Trustee shall have a lien prior to the Securities of any Series on all money or
property held or collected by the Trustee, except that held in trust to pay principal of and interest on particular Securities of that
Series.
When the Trustee incurs expenses
or renders services after an Event of Default specified in Section 6.1(e) or (f) occurs, the expenses and the compensation
for the services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Section 7.7
shall survive the termination of this Indenture or the earlier resignation or removal of the Trustee.
Section 7.8 Replacement
of Trustee.
A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only upon the successor Trustee’s acceptance of appointment
as provided in this Section 7.8.
The Trustee may resign with
respect to the Securities of one or more Series by so notifying the Company at least 30 days prior to the date of the proposed resignation.
The Holders of a majority in aggregate principal amount of the Securities of any Series may remove the Trustee with respect to that
Series by so notifying the Trustee and the Company. The Company may remove the Trustee with respect to Securities of one or more
Series if:
(a) the
Trustee fails to comply with Section 7.10;
(b) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a
Custodian or public officer takes charge of the Trustee or its property; or
(d) the
Trustee becomes incapable of acting.
If the Trustee resigns or is
removed or if a vacancy exists in the office of Trustee for any reason, the Company shall promptly appoint a successor Trustee. Within
one year after the successor Trustee takes office, the Holders of a majority in aggregate principal amount of the then outstanding Securities
may appoint a successor Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee with
respect to the Securities of any one or more Series does not take office within 60 days after the retiring Trustee resigns or is
removed, the retiring Trustee, the Company or the Holders of at least 10% in aggregate principal amount of the Securities of the applicable
Series may petition any court of competent jurisdiction for the appointment of a successor Trustee.
A successor Trustee shall deliver
a written acceptance of its appointment to the retiring Trustee and to the Company. Upon payment of all amounts owing to retiring Trustee
hereunder, the retiring Trustee shall immediately transfer all property held by it as Trustee to the successor Trustee subject to the
lien provided for in Section 7.7, and the resignation or removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee with respect to each Series of Securities for which it is acting
as Trustee under this Indenture. A successor Trustee shall mail a notice of its succession to each Securityholder of each such Series.
Notwithstanding replacement of the Trustee pursuant to this Section 7.8, the Company’s obligations under Section 7.7 hereof
shall continue for the benefit of the retiring Trustee with respect to expenses and liabilities incurred by it prior to such replacement.
Section 7.9 Successor
Trustee by Merger, etc.
If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility;
Disqualification.
This Indenture shall always
have a Trustee who satisfies the requirements of TIA § 310(a)(1), (2) and (5). The Trustee shall always have a combined
capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition. The Trustee shall comply
with TIA § 310(b).
Section 7.11 Preferential
Collection of Claims Against Company.
The Trustee is subject to TIA
§ 311(a), excluding any creditor relationship listed in TIA § 311(b). A Trustee who has resigned or been removed shall
be subject to TIA § 311(a) to the extent indicated therein.
ARTICLE VIII.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Section 8.1 Option
to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time,
at the option of its Board of Directors evidenced by a resolution set forth in an Officers’ Certificate, elect to have either Section 8.2
or 8.3 hereof be applied to all outstanding Securities of any Series upon compliance with the conditions set forth below in this
Article 8.
Section 8.2 Legal
Defeasance and Discharge.
Upon the Company’s exercise
under Section 8.1 hereof of the option applicable to this Section 8.2, the Company and each guarantor, if any, of such Securities
will, subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be deemed to have been discharged from its or
their obligations with respect to all outstanding Securities of such Series (including the related guarantees, if any) on the date
the conditions set forth below are satisfied (hereinafter, “Legal Defeasance”). For this purpose, Legal Defeasance means that
the Company and such guarantors, if any, will be deemed to have paid and discharged the entire Indebtedness represented by the outstanding
Securities of such Series (including the related guarantees, if any), which will thereafter be deemed to be “outstanding”
only for the purposes of Section 8.5 hereof and the other Sections of this Indenture referred to in clauses (1) and (2) below,
and to have satisfied all its or their other obligations under such Securities, such guarantees, if any, and this Indenture (and the Trustee
for such Securities, on demand of and at the expense of the Company, shall execute proper instruments acknowledging the same), except
for the following provisions which will survive until otherwise terminated or discharged hereunder:
(1) the
rights of Holders of outstanding Securities of such Series to receive payments in respect of the principal of, or interest or premium,
if any, on, such Securities when such payments are due from the trust referred to in Section 8.4 hereof;
(2) the
Company’s obligations with respect to such Securities under Article 2 and Section 4.2 hereof;
(3) the
rights, powers, trusts, duties, indemnities and immunities of the Trustee for such Securities hereunder and the Company’s and the
guarantors’, if any, obligations in connection therewith; and
(4) this
Article 8.
Subject to compliance with this
Article 8, the Company may exercise its option under this Section 8.2 notwithstanding the prior exercise of its option under
Section 8.3 hereof.
Section 8.3 Covenant
Defeasance.
Upon the Company’s exercise
under Section 8.1 hereof of the option applicable to this Section 8.3, the Company and each of the guarantors, if any, will,
subject to the satisfaction of the conditions set forth in Section 8.4 hereof, be released from each of their or its obligations
under the covenants specified in a Board Resolution, a supplemental indenture hereto or an Officers’ Certificate, in accordance
with Section 2.2.18, with respect to the outstanding Securities of the applicable Series on and after the date the conditions
set forth in Section 8.4 hereof are satisfied (hereinafter, “Covenant Defeasance”), and such Securities will thereafter
be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders of such Securities
(and the consequences of any thereof) in connection with such covenants, but will continue to be deemed “outstanding” for
all other purposes hereunder (it being understood that such Securities will not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Securities of such Series, the Company may omit to comply with
and will have no liability in respect of any term, condition or limitation set forth in any such covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such covenant or by reason of any reference in any such covenant to any other provision
herein or in any other document and such omission to comply will not constitute a Default or an Event of Default under Section 6.1
hereof, but, except as specified above, the remainder of this Indenture and such Securities will be unaffected thereby. In addition, upon
the Company’s exercise under Section 8.1 hereof of the option applicable to this Section 8.3, subject to the satisfaction
of the conditions set forth in Section 8.4 hereof, Sections 6.1(d) through (f) hereof will not constitute Events of Default.
Section 8.4 Conditions
to Legal or Covenant Defeasance.
In order to exercise either
Legal Defeasance or Covenant Defeasance under either Section 8.2 or 8.3 hereof with respect to Securities of any Series:
(1) the
Company must irrevocably deposit with the Trustee for such Securities, in trust, for the benefit of the Holders of such Securities, cash
in U.S. dollars, non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, in the opinion of
a nationally recognized investment bank, appraisal firm, or firm of independent public accountants, to pay the principal of, premium,
if any, and interest on, the outstanding Securities of such Series on the stated date for payment thereof or on the applicable redemption
date, as the case may be, and the Company must specify whether such Securities are being defeased to such stated date for payment or to
a particular redemption date;
(2) in
the case of an election under Section 8.2 hereof, the Company must deliver to the Trustee for such Securities an Opinion of Counsel
confirming 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 Indenture, there has been a change in the applicable federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of the outstanding Securities of such Series will not recognize income,
gain or loss for federal income tax purposes as a result of such Legal Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in
the case of an election under Section 8.3 hereof, the Company must deliver to the Trustee for such Securities an Opinion of Counsel
confirming that the Holders of such Securities will not recognize income, gain or loss for federal income tax purposes as a result of
such Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred;
(4) no
Default or Event of Default with respect to such Securities shall have occurred and be continuing on the date of such deposit (other than
a Default or Event of Default resulting from the borrowing of funds to be applied to such deposit);
(5) such
Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under, any material agreement
or instrument (other than this Indenture) to which the Company or any of its Subsidiaries is a party or by which the Company or any of
its Subsidiaries is bound;
(6) the
Company must deliver to the Trustee for such Securities 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 with the intent of defeating, hindering,
delaying or defrauding any creditors of the Company or others; and
(7) the
Company must deliver to the Trustee for such Securities an Officers’ Certificate and an Opinion of Counsel, each stating that all
conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with.
Section 8.5 Deposited
Money and Government Securities to be Held in Trust; Other Miscellaneous Provisions.
Subject to Section 8.6
hereof, all money and non-callable Government Securities (including the proceeds thereof) deposited with the Trustee (or other qualifying
trustee, collectively for purposes of this Section 8.5, the “Trustee”) pursuant to Section 8.4 hereof in respect
of the outstanding Securities of any Series will be held in trust and applied by the Trustee, in accordance with the provisions of
such Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Holders of such Securities of all sums due and to become due thereon in respect of principal,
premium, if any, and interest, but such money need not be segregated from other funds except to the extent required by law.
The Company will pay and indemnify
the Trustee against any tax, fee or other charge imposed on or assessed against the cash or non-callable Government Securities deposited
pursuant to Section 8.4 hereof 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 the outstanding Securities of the applicable Series.
Notwithstanding anything in
this Article 8 to the contrary, the Trustee will deliver or pay to the Company from time to time upon the request of the Company
any money or non-callable Government Securities held by it as provided in Section 8.4 hereof which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be
the opinion delivered under Section 8.4(1) hereof), are in excess of the amount thereof that would then be required to be deposited
to effect an equivalent Legal Defeasance or Covenant Defeasance.
Section 8.6 Repayment
to Company.
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, premium, if any, or interest on,
any Series of Securities and remaining unclaimed for two years after such principal, premium, if any, or interest has become due
and payable shall be paid to the Company on its request or (if then held by the Company) will be discharged from such trust; and the Holders
of such Securities will thereafter be permitted to 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, will thereupon cease; provided, however,
that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be
published once, in the New York Times and The Wall Street Journal (national edition), notice that such money remains unclaimed and that,
after a date specified therein, which will not be less than 30 days from the date of such notification or publication, any unclaimed balance
of such money then remaining will be repaid to the Company.
Section 8.7 Reinstatement.
If the Trustee or Paying Agent
is unable to apply any U.S. dollars or non-callable Government Securities in accordance with Section 8.2 or 8.3 hereof, as the case
may be, by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company’s and any applicable guarantors’ obligations under this Indenture and the applicable Securities
and the guarantees will be revived and reinstated as though no deposit had occurred pursuant to Section 8.2 or 8.3 hereof until such
time as the Trustee or Paying Agent is permitted to apply all such money in accordance with Section 8.2 or 8.3 hereof, as the case
may be; provided, however, that, if the Company makes any payment of principal of, premium, if any, or interest on, any such Securities
following the reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of such Securities to receive
such payment from the money held by the Trustee or Paying Agent.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1 Without
Consent of Holders.
Notwithstanding Section 9.2
of this Indenture, the Company and the Trustee may amend or supplement this Indenture or the Securities of one or more Series without
the consent of any Securityholder:
(a) to
cure any ambiguity, defect or inconsistency or to conform the terms hereof, as amended and supplemented, that are applicable to the Securities
of any Series to the description of the terms of such Securities in the offering memorandum, prospectus supplement or other offering
document applicable to such Securities at the time of initial sale thereof;
(b) to
provide for uncertificated Securities in addition to or in place of certificated Securities;
(c) to
provide for the assumption of the Company’s obligations to the Holders of the Securities by a successor to the Company pursuant
to Article 5 hereof;
(d) to
make any change that would provide any additional rights or benefits to the Holders of Securities or that does not adversely affect the
legal rights hereunder of any Securityholder;
(e) to
comply with requirements of the SEC in order to effect or maintain the qualification of this Indenture under the TIA;
(f) to
add to or change or eliminate any provision of this Indenture as shall be necessary or desirable in accordance with any amendments to
the Trust Indenture Act;
(g) to
provide for the issuance of and establish the form and terms and conditions of Securities of any Series as permitted by this Indenture;
(h) to
evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more
Series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee; or
(i) to
add guarantors or co-obligors with respect to any Series of Securities or to release guarantors of Securities in accordance with
the terms of the applicable Series of Securities.
Upon the request of the Company
accompanied by a resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon
receipt by the Trustee of the documents described in Section 7.2 hereof, the Trustee will join with the Company in the execution
of any amended or supplemental indenture authorized or permitted by the terms of this Indenture and to make any further appropriate agreements
and stipulations that may be therein contained, but the Trustee will not be obligated to enter into such amended or supplemental indenture
that affects its own rights, duties or immunities under this Indenture or otherwise.
Section 9.2 With
Consent of Holders.
Subject to Section 9.3,
the Company and the Trustee may enter into a supplemental indenture with the written consent of the Holders of at least a majority in
aggregate principal amount of the outstanding Securities of each Series affected by such supplemental indenture (including consents
obtained in connection with a tender offer or exchange offer for the Securities of such Series), for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as provided in Section 9.3, the Holders of at least a majority
in aggregate principal amount of the outstanding Securities of each Series by notice to the Trustee (including consents obtained
in connection with a tender offer or exchange offer for the Securities of such Series) may waive compliance by the Company with any provision
of this Indenture or the Securities with respect to such Series.
It shall not be necessary for
the consent of the Holders of Securities under this Section 9.2 to approve the particular form of any proposed supplemental indenture
or waiver, but it shall be sufficient if such consent approves the substance thereof. Upon the request of the Company accompanied by a
resolution of its Board of Directors authorizing the execution of any such amended or supplemental indenture, and upon the filing with
the Trustee of evidence satisfactory to the Trustee of the consent of the Holders of Securities as aforesaid, and upon receipt by the
Trustee of the documents described in Section 9.7 hereof, the Trustee will join with the Company in the execution of such amended
or supplemental indenture unless such amended or supplemental indenture directly affects the Trustee’s own rights, duties or immunities
under this Indenture or otherwise, in which case the Trustee may in its discretion, but will not be obligated to, enter into such amended
or supplemental Indenture.
After a supplemental indenture
or waiver under this section becomes effective, the Company shall mail to the Holders of Securities affected thereby a notice briefly
describing the supplemental indenture or waiver. Any failure by the Company to mail such notice, or any defect therein, shall not, however,
in any way impair or affect the validity of any such supplemental indenture or waiver.
Section 9.3 Limitations.
Without the consent of each
Securityholder affected, an amendment or waiver may not (with respect to any Securities held by a non-consenting Holder):
(a) change
the amount of Securities whose Holders must consent to an amendment, supplement or waiver;
(b) reduce
the rate of or extend the time for payment of interest (including default interest) on any Security;
(c) reduce
the principal or change the Stated Maturity of any Security or reduce the amount of, or postpone the date fixed for, the payment of any
sinking fund or analogous obligation;
(d) reduce
the principal amount of Discount Securities payable upon acceleration of the maturity thereof;
(e) waive
a Default or Event of Default in the payment of the principal of or interest, if any, on any Security (except a rescission of acceleration
of the Securities of any Series by the Holders of at least a majority in principal amount of the outstanding Securities of such Series and
a waiver of the payment default that resulted from such acceleration);
(f) make
the principal of or interest, if any, on any Security payable in any currency other than that stated in the Security;
(g) make
any change in Sections 6.4 or 9.3 (this sentence); or
(h) waive
a redemption payment with respect to any Security or change any of the provisions with respect to the redemption of any Securities, except
as specifically set forth in the Board Resolution, supplemental indenture hereto or Officers’ Certificate delivered pursuant to
Section 2.2.
Section 9.4 Compliance
with Trust Indenture Act.
Every amendment to this Indenture
or the Securities of one or more Series shall be set forth in a supplemental indenture hereto that complies with the TIA as then
in effect.
Section 9.5 Revocation
and Effect of Consents.
Until an amendment or waiver
becomes effective, a consent to it by a Holder of a Security is a continuing consent by the Holder and every subsequent Holder of a Security
or portion of a Security that evidences the same debt as the consenting Holder’s Security, even if notation of the consent is not
made on any Security. However, any such Holder or subsequent Holder may revoke the consent as to his Security or portion of a Security
if the Trustee receives the notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once
effective shall bind every Securityholder of each Series affected by such amendment or waiver unless it is of the type described
in any of clauses (a) through (h) of Section 9.3. In that case, the amendment or waiver shall bind each Holder of a Security
who has consented to it and every subsequent Holder of a Security or portion of a Security that evidences the same debt as the consenting
Holder’s Security.
Section 9.6 Notation
on or Exchange of Securities.
The Trustee may place an appropriate
notation about an amendment or waiver on any Security of any Series thereafter authenticated. The Company in exchange for Securities
of that Series may issue and the Trustee shall authenticate upon request new Securities of that Series that reflect the amendment
or waiver.
Section 9.7 Trustee
Protected.
In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modifications thereby of the trusts created
by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 7.1) shall be fully protected in relying upon,
an Officers’ Certificate and an Opinion of Counsel each stating that the execution of such supplemental indenture is authorized
or permitted by this Indenture. The Trustee shall sign all supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights, duties, liabilities, indemnities or immunities.
ARTICLE X.
SATISFACTION AND DISCHARGE
Section 10.1 Satisfaction
and Discharge.
This Indenture will be discharged
and will cease to be of further effect as to a Series of Securities issued hereunder, when:
(a) either:
(i) all
such Securities that have been authenticated, except lost, stolen or destroyed Securities that have been replaced or paid and Securities
for whose payment money has theretofore been deposited in trust and thereafter repaid to the Company, have been delivered to the Trustee
for cancellation; or
(ii) all
such Securities that have not been delivered to the Trustee for cancellation have become due and payable by reason of the distribution
of a notice of redemption or otherwise or will become due and payable within one year and the Company has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust solely for the benefit of the Holders of such Securities, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts as will be sufficient, without consideration of any reinvestment
of interest, to pay and discharge the entire Indebtedness on such Securities not delivered to the Trustee for cancellation for principal,
premium, if any, and accrued interest to the date of maturity or redemption;
(b) no
Default or Event of Default has occurred and is continuing on the date of such deposit (other than a Default or Event of Default resulting
from the borrowing of funds to be applied to such deposit) and the deposit will not result in a breach or violation of, or constitute
a default under, any other instrument to which the Company or any guarantor, as applicable, of such Securities is a party or by which
the Company or any such guarantor, as applicable, is bound;
(c) the
Company or any guarantor of such Securities has paid or caused to be paid all sums payable by it under this Indenture; and
(d) the
Company has delivered irrevocable instructions to the Trustee for such Securities under this Indenture to apply the deposited money toward
the payment of such Securities at maturity or on the redemption date, as the case may be.
In addition, the Company must
deliver an Officers’ Certificate and an Opinion of Counsel to the Trustee for such Securities stating that all conditions precedent
to satisfaction and discharge have been satisfied.
Notwithstanding the satisfaction
and discharge of this Indenture, if money has been deposited with the Trustee pursuant to subclause (b) of this Section 10.1,
the provisions of Sections 10.2 and 8.6 hereof will survive. In addition, nothing in this Section 10.1 will be deemed to discharge
those provisions of Section 7.7 hereof, that, by their terms, survive the satisfaction and discharge of this Indenture.
Section 10.2 Application
of Trust Money.
Subject to the provisions of
Section 8.6 hereof, all money deposited with a Trustee pursuant to Section 10.1 hereof shall be held in trust and applied by
it, in accordance with the provisions of the Securities with respect to which such deposit was made and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as such Trustee may determine, to the
persons entitled thereto, of the principal (and premium, if any) and interest for whose payment such money has been deposited with such
Trustee; but such money need not be segregated from other funds except to the extent required by law.
ARTICLE XI.
MISCELLANEOUS
Section 11.1 Trust
Indenture Act Controls.
This Indenture is hereby made
subject to, and shall be governed by, the provisions of the TIA required or deemed to be part of and to govern indentures qualified under
the TIA. If any provision of this Indenture limits, qualifies, or conflicts with another provision which is required or deemed to be included
in this Indenture by the TIA, such required or deemed provision shall control.
Section 11.2 Notices.
Any notice or communication
by the Company or the Trustee to the other, or by a Holder to the Company or the Trustee, is duly given if in writing and delivered in
person, mailed by first-class mail or by any telecommunication device capable of creating a written record (including electronic mail):
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if to the Company: |
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Clearway Energy, Inc.
300 Carnegie Center, Suite 300
Princeton, NJ 08540
Attention: General Counsel
Telephone: (609) 608-1525
Email: ogc@clearwayenergy.com |
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if to the Trustee: |
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Delaware Trust Company
251 Little Falls Drive
Wilmington, DE 19808
Attention: Corporate Trust Administration – Lici Zhu
Telephone: 302-485-1380
Email: USTrustAgency@delawaretrust.com |
The Company or the Trustee by
notice to the other may designate additional or different addresses for subsequent notices or communications.
Any notice or communication
to a Securityholder shall be mailed by first-class mail to his address shown on the register kept by the Registrar. Failure to mail a
notice or communication to a Securityholder of any Series or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or any other Series.
If a notice or communication
is mailed or published in the manner provided above, within the time prescribed, it is duly given, whether or not the Securityholder receives
it.
If the Company mails a notice
or communication to Securityholders, it shall mail a copy to the Trustee and each Agent at the same time.
Section 11.3 Communication
by Holders with Other Holders.
Securityholders of any Series may
communicate pursuant to TIA § 312(b) with other Securityholders of that Series or any other Series with respect
to their rights under this Indenture or the Securities of that Series or all Series. The Company, the Trustee, the Registrar and
anyone else shall have the protection of TIA § 312(c).
Section 11.4 Certificate
and Opinion as to Conditions Precedent.
Upon any request or application
by the Company to the Trustee to take any action under this Indenture, the Company shall furnish to the Trustee:
(a) an
Officers’ Certificate stating that, in the opinion of the signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent have been complied with.
Section 11.5 Statements
Required in Certificate or Opinion.
Each certificate or opinion
with respect to compliance with a condition or covenant provided for in this Indenture (other than a certificate provided pursuant to
TIA § 314(a)(4)) shall comply with the provisions of TIA § 314(e) and shall include:
(a) a
statement that the person making such certificate or opinion has read such covenant or condition;
(b) a
brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a
statement that, in the opinion of such person, he has made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been complied with; and
(d) a
statement as to whether or not, in the opinion of such person, such condition or covenant has been complied with.
Section 11.6 Rules by
Trustee and Agents.
The Trustee may make reasonable
rules for action by or a meeting of Securityholders of one or more Series. Any Agent may make reasonable rules and set reasonable
requirements for its functions.
Section 11.7 Legal
Holidays.
Unless otherwise provided by
Board Resolution, Officers’ Certificate or supplemental indenture hereto for a particular Series, a “Legal Holiday”
is any day that is not a Business Day. If a payment date is a Legal Holiday at a place of payment, payment may be made at that place on
the next succeeding day that is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 11.8 No
Recourse Against Others.
A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any obligations of the Company under the Securities or the Indenture
or for any claim based on, in respect of or by reason of such obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Securities.
Section 11.9 Counterparts;
Electronic Signatures.
This Indenture may be executed
in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute one and the same agreement. Each of the transaction parties agrees on behalf
of itself, and any Person acting or claiming by, under or through such transaction party, that any written instrument delivered in connection
with this Indenture or any related document, including without limitation any notices, amendments, supplements to such documents, may
be executed by electronic methods (whether by .pdf scan or utilization of an electronic signature platform or application). Any electronic
signature document delivered via email from a person authorized on an incumbency certificate provided by the Company to the Trustee shall
be considered signed or executed by such person on behalf of the Company. The Company agrees to assume all risks arising out of the use
of electronic methods for all purposes including the authorization, execution, delivery, or submission of documents, instruments, notices,
directions, instructions, reports, opinions and certificates to the Trustee, including without limitation the risk of the Trustee
acting on unauthorized instructions, and the risk of interception and misuse by third parties. Any electronic signature shall have the
same legal validity and enforceability as a manually executed signature to the fullest extent permitted by applicable law, including the
Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any similar
federal or state law, rule or regulation, as the same may be in effect from time to time, and the parties hereby waive any objection
to the contrary. Any document accepted, executed or agreed to in conformity with such laws will be binding on all parties hereto to the
same extent as if it were physically executed and each party hereby consents to the use of any third party electronic signature capture
service providers as may be reasonably chosen by a signatory hereto.
Section 11.10 Governing
Laws.
THE INTERNAL LAW OF THE
STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS INDENTURE, THE SECURITIES AND ANY GUARANTEES OF THE SECURITIES WITHOUT GIVING
EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
Section 11.11 No
Adverse Interpretation of Other Agreements.
This Indenture may not be used
to interpret another indenture, loan or debt agreement of the Company or a Subsidiary of the Company. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 11.12 Successors.
All agreements of the Company
in this Indenture and the Securities shall bind its successor. All agreements of the Trustee in this Indenture shall bind its successor.
Section 11.13 Severability.
In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 11.14 Table
of Contents, Headings, Etc.
The Table of Contents, Cross-Reference
Table, and headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
ARTICLE XII.
SINKING FUNDS
Section 12.1 Applicability
of Article.
The provisions of this Article shall
be applicable to any sinking fund for the retirement of the Securities of a Series, except as otherwise permitted or required by any form
of Security of such Series issued pursuant to this Indenture.
The minimum amount of any sinking
fund payment provided for by the terms of the Securities of any Series is herein referred to as a “mandatory sinking fund payment”
and any other amount provided for by the terms of Securities of such Series is herein referred to as an “optional sinking fund
payment.” If provided for by the terms of Securities of any Series, the cash amount of any sinking fund payment may be subject to
reduction as provided in Section 12.2. Each sinking fund payment shall be applied to the redemption of Securities of any Series as
provided for by the terms of the Securities of such Series.
Section 12.2 Satisfaction
of Sinking Fund Payments with Securities.
The Company may, in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of any Series to be made pursuant to the terms of such
Securities (1) deliver outstanding Securities of such Series to which such sinking fund payment is applicable (other than any
of such Securities previously called for mandatory sinking fund redemption) and (2) apply as credit Securities of such Series to
which such sinking fund payment is applicable and which have been repurchased by the Company or redeemed either at the election of the
Company pursuant to the terms of such Series of Securities (except pursuant to any mandatory sinking fund) or through the application
of permitted optional sinking fund payments or other optional redemptions pursuant to the terms of such Securities, provided that such
Securities have not been previously so credited. Such Securities shall be received by the Trustee, together with an Officers’ Certificate
with respect thereto, not later than 15 days prior to the date on which the Trustee begins the process of selecting Securities for redemption,
and shall be credited for such purpose by the Trustee at the price specified in such Securities for redemption through operation of the
sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities
in lieu of cash payments pursuant to this Section 12.2, the principal amount of Securities of such Series to be redeemed in
order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such Series for
redemption, except upon receipt of a Company Order that such action be taken, and such cash payment shall be held by the Trustee or a
Paying Agent and applied to the next succeeding sinking fund payment, provided, however, that the Trustee or such Paying Agent shall from
time to time upon receipt of a Company Order pay over and deliver to the Company any cash payment so being held by the Trustee or such
Paying Agent upon delivery by the Company to the Trustee of Securities of that Series purchased by the Company having an unpaid principal
amount equal to the cash payment required to be released to the Company.
Section 12.3 Redemption
of Securities for Sinking Fund.
Not less than 45 days (unless
otherwise indicated in the Board Resolution, supplemental indenture or Officers’ Certificate in respect of a particular Series of
Securities) prior to each sinking fund payment date for any Series of Securities, the Company will deliver to the Trustee an Officers’
Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that Series pursuant to the terms of that
Series, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied
by delivering and crediting of Securities of that Series pursuant to Section 12.2, and the optional amount, if any, to be added
in cash to the next ensuing mandatory sinking fund payment, and the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 30 days (unless
otherwise indicated in the Board Resolution, Officers’ Certificate or supplemental indenture in respect of a particular Series of
Securities) before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment
date in the manner specified in Section 3.2 and cause notice of the redemption thereof to be given in the name of and at the expense
of the Company in the manner provided in Section 3.3. Such notice having been duly given, the redemption of such Securities shall
be made upon the terms and in the manner stated in Sections 3.4, 3.5 and 3.6.
Section 12.4 Compliance
with Applicable Anti-Terrorism and Anti-Money Laundering Regulations.
In order to comply with laws,
rules, regulations and executive orders in effect from time to time applicable to banking institutions, including those relating to the
funding of terrorist activities and money laundering (“Relevant Law”), the Trustee is required to obtain, verify and record
certain information relating to individuals and entities which maintain a business relationship with the Trustee. Accordingly, each of
the parties agrees to provide to the Trustee upon its request from time to time such identifying information and documentation as may
be available for such party in order to enable the Trustee to comply with Relevant Law.
[Signatures on following page]
IN WITNESS WHEREOF, the parties
hereto have caused this Indenture to be duly executed and attested, all as of the day and year first above written.
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CLEARWAY ENERGY, INC. |
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By: |
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Name: |
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Title: |
[Signature Page to Indenture]
Exhibit 5.1
 |
2001 Ross Avenue
Dallas, Texas
75201-2980
TEL +1 214.953.6500
FAX +1 214.953.6503
BakerBotts.com |
AUSTIN
Brussels
DALLAS
DUBAI
HOUSTON
LONDON
|
NEW
YORK
PALO ALTO
RIYADH
san francisco
Singapore
WASHINGTON |
August 8, 2023
Clearway Energy, Inc.
300 Carnegie Center, Suite 300
Princeton, New Jersey 08540
Ladies and Gentlemen:
We have acted as counsel for Clearway Energy, Inc.,
a Delaware corporation (the “Company”), with respect to certain legal matters in connection with the filing by the Company
with the Securities and Exchange Commission (the “Commission”) of a registration statement on Form S-3 (the “Registration
Statement”) under the Securities Act of 1933, as amended (the “Securities Act”), registering securities to be issued
and sold by the Company from time to time pursuant to Rule 415 under the Securities Act. Such securities include (i) the
Company’s Class A common stock, par value $0.01 per share (the “Class A Common Stock”), (ii) the Company’s
Class C common stock, par value $0.01 per share (the “Class C Common Stock” and, together with the Class A
Common Stock, the “Common Stock”), (iii) one or more series of the Company’s senior or subordinated debt securities
(collectively, the “Debt Securities”), and (iv) one or more series of the Company’s preferred stock, par value
$0.01 per share (the “Preferred Stock”). The Common Stock, the Debt Securities and the Preferred Stock are collectively referred
to herein as the “Securities.”
In our capacity as your counsel in connection with
the filing referred to above and as a basis for the opinions herein after expressed, we have examined (i) the Registration Statement
and the prospectus contained therein (the “Prospectus”), (ii) the Amended and Restated Certificate of Incorporation of
the Company, (iii) the Fourth Amended and Restated Bylaws of the Company, (iv) the form of an indenture filed as an exhibit
to the Registration Statement (an “Indenture”), (v) originals, or copies certified or otherwise identified, of the corporate
records of the Company, (vi) originals, or copies certified or otherwise identified, of certificates of public officials and of representatives
of the Company and (vii) statutes and other instruments and documents as we deemed necessary or advisable for the opinions hereafter
expressed.
In connection with this opinion, we have assumed
that (i) the Registration Statement and any amendments thereto (including post-effective amendments) will have become effective under
the Securities Act; (ii) a prospectus supplement will have been prepared and filed with the Commission describing the Securities
offered thereby; (iii) all Securities will be offered, issued and sold in compliance with applicable federal and state securities
laws and in the manner stated in the Registration Statement (including post-effective amendments thereto) and the appropriate prospectus
supplement; (iv) 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; (v) any securities issuable upon conversion,
redemption, exchange or exercise of any Securities being offered will be duly authorized, created and, if appropriate, reserved for issuance
upon such conversion, redemption, exchange or exercise; and (vi) the certificates, if any, for the Common Stock will conform to the
specimens thereof examined by us and will have been duly countersigned by a transfer agent and duly registered by a registrar of the Common
Stock, or, if uncertificated, valid book-entry notations will have been made in the stock register of the Company in accordance with the
provisions of the governing documents of the Company.
| Clearway Energy, Inc. | - 2- | August 8,
2023 |
In addition, in giving the opinions hereinafter
expressed, we have relied, to the extent we deemed proper, without independent investigation, upon certificates, statements and other
representations of officers and other representatives of the Company and of governmental and public officials with respect to the accuracy
and completeness of the material factual matters contained therein or covered thereby, and we have assumed, without independent investigation,
that the signatures on all documents examined by us are genuine, that all documents submitted to us as originals are accurate and complete,
that all documents submitted to us as copies are true and correct copies of the originals thereof, that such original copies are authentic
and complete and that all information submitted to us was accurate and complete.
Based upon and subject to the foregoing, we are
of the opinion that:
| 1. | With respect to the Common Stock, when (a) the Company has taken all necessary action to approve the issuance of such Common
Stock, the terms of the offering thereof and related matters, and (b) such Common Stock has been issued and delivered in accordance
with the terms of the applicable definitive purchase, underwriting or similar agreement approved by the Company upon payment of the consideration
therefor provided for therein, such Common Stock will be duly authorized and validly issued and non-assessable. |
| 2. | With respect to the Debt Securities to be issued under the applicable Indenture, when (a) the Company has taken all necessary
action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters, (b) the
applicable Indenture and any supplemental indenture thereto relating to such Debt Securities have been duly authorized and validly executed
and delivered by the Company, the trustee thereunder and any other parties thereto, (c) the applicable Indenture and any supplemental
indenture thereto relating to such Debt Securities have been duly qualified under the Trust Indenture Act of 1939, as amended, and (d) such
Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the terms of the applicable Indenture
and any supplemental indenture thereto relating to such Debt Securities and the applicable definitive purchase, underwriting or similar
agreement approved by the Company, upon payment of the consideration therefor provided for therein, such Debt Securities will, when issued,
constitute valid and legally binding obligations of the Company, enforceable against the Company in accordance with their terms, except
as the enforceability thereof is subject to the effect of (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or conveyance or other similar laws relating to or affecting creditors’ rights generally, (ii) general principles
of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) or (iii) any implied covenants
of good faith and fair dealing. |
| 3. | With respect to the Preferred Stock, when (a) the Company has taken all necessary action to approve the issuance of such Preferred
Stock, the terms of the offering thereof and related matters, and (b) such Preferred Stock has been issued and delivered in accordance
with the terms of the applicable definitive purchase, underwriting or similar agreement approved by the Company upon payment of the consideration
therefor provided for therein, such Preferred Stock will be duly authorized and validly issued and non-assessable. |
| Clearway Energy, Inc. | - 3- | August 8,
2023 |
The opinions set forth above are limited in all
respects to matters of the laws of the State of New York, the Delaware General Corporation Law and applicable reported judicial decisions,
rules and regulations interpreting and implementing those laws, and the federal laws of the United States of America, in each case
as in effect on the date hereof. We express no opinion as to the effect of the laws of any other jurisdiction.
We hereby consent to the
filing of this opinion of counsel with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference
to our Firm under the heading “Legal Matters” in the Prospectus forming a part of the Registration Statement. In giving this
consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities
Act or the rules and regulations of the Commission thereunder.
| |
Very truly yours, |
| |
|
| |
/s/ Baker Botts L.L.P. |
Exhibit 23.1
Consent of Independent
Registered Public Accounting Firm
We consent to the
reference to our firm under the caption “Experts” in this Registration Statement (Form S-3) and related
Prospectus of Clearway Energy, Inc. for the registration of debt securities, preferred stock and common stock and to the
incorporation by reference therein of our reports dated February 23, 2023, with respect to the consolidated financial
statements and schedules of Clearway Energy, Inc., and the effectiveness of internal control over financial reporting of
Clearway Energy, Inc., included in its Annual Report (Form 10-K) for the year ended December 31, 2022, filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Philadelphia, Pennsylvania
August 8, 2023
Exhibit 23.2
 |
|
| |
KPMG LLP
1601 Market Street
Philadelphia, PA 19103-2499 |
Consent of Independent Registered Public Accounting
Firm
We consent to the use of our report dated March 1, 2021,
with respect to the consolidated financial statements of Clearway Energy, Inc., incorporated herein by reference, and to the reference
to our firm under the heading "Experts" in the prospectus.
Philadelphia, Pennsylvania
August 8, 2023
Exhibit 25.1
SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE
ACT OF 1939 OF A
CORPORATION DESIGNATED
TO ACT AS TRUSTEE
¨
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)
Delaware
Trust Company
(Exact name of trustee
as specified in its charter)
| Delaware |
51-0011500 |
(Jurisdiction of incorporation or organization if
not a U.S. national bank) |
(I.R.S. Employer
Identification No.) |
| |
|
|
|
|
|
|
251 Little Falls Drive
Wilmington, Delaware |
19808 |
| (Address of principal executive offices) |
(Zip code) |
| |
|
|
|
|
|
|
Corporation Service Company
251 Little Falls Drive
Wilmington, Delaware
(800) 927-9801
(Name, address and telephone
number of agent for service)
Clearway Energy, Inc.
(Exact name of obligor
as specified in its charter)
| Delaware |
46-1777204 |
(State or other jurisdiction of incorporation
of organization) |
(I.R.S. Employer
Identification No.) |
| |
|
|
|
|
|
|
300 Carnegie Center, Suite 300
Princeton, NJ 08540 |
|
| (Address of principal executive offices) |
|
| |
|
|
|
|
|
|
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. |
| |
Office of the State Banking Commissioner |
| |
State of Delaware |
| |
555 East Loockerman Street
Dover, DE 19901 |
| |
(b) |
Whether it is authorized to exercise corporate trust powers. |
| |
The trustee is authorized to exercise corporate trust powers. |
| Item 2. |
Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each
such affiliation. |
| |
None with respect to the trustee. |
| |
|
| Items 3-14. |
No responses are included for Items 3–14 because the obligor is not in default as provided under Item 13. |
| |
|
| Item 15. |
Foreign Trustee. |
| |
|
| |
Not applicable. |
| |
|
| Item 16. |
List of Exhibits |
| |
|
| |
List below all exhibits filed as a part of this Statement of Eligibility. |
| Exhibit 1. |
A copy of the Articles of Association of the trustee now in effect as contained in the Certificate of Incorporation. * |
| |
|
| Exhibit 2. |
A copy of the Certificate of Incorporation. * |
| |
|
| Exhibit 3. |
See Exhibit 2. |
| Exhibit 4. |
A copy of by-laws of the trustee as now in effect. * |
| Exhibit 5. |
Not applicable. |
| Exhibit 6. |
The consent of the trustee required by Section 321(b) of the Act. |
| Exhibit 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. |
| Exhibit 8. |
Not applicable. |
| Exhibit 9. |
Not applicable. |
* Incorporated by reference to Exhibit 25.1 to the registration
statement on S-1, Registration Number 333-225797 filed on June 21, 2018.
Pursuant to the requirements of the Trust
Indenture Act of 1939, as amended, the trustee, Delaware Trust Company, a non-depository trust company and corporation duly organized
and existing under the laws of Delaware, has duly caused this statement of eligibility to be signed on its behalf by the undersigned,
thereunto duly authorized, all in the City of Wilmington and State of Delaware on the 8th Day of August 2023.
| DELAWARE TRUST COMPANY | |
| | |
| /s/Lici Zhu | |
| Name: | Lici Zhu | |
| Title: | Assistant Vice President | |
EXHIBIT 6
August 8, 2023
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In accordance with Section 321(b) of
the Trust Indenture Act of 1939, as amended, the undersigned hereby consents that reports of examination of the undersigned made by Federal,
State, Territorial, or District authorities authorized to make such examination may be furnished by such authorities to the Securities
and Exchange Commission upon its request therefor.
Very truly yours,
| DELAWARE TRUST COMPANY | |
| | |
| /s/Lici Zhu | |
| Name: | Lici Zhu | |
| Title: | Assistant Vice President | |
EXHIBIT 7
Report of Condition of
Delaware Trust Company
of 251 Little Falls Drive,
Wilmington, Delaware 19808
at the close of business
March 31, 2023, filed in accordance with 5 Del. Laws, c.9, §904
| | |
Dollar Amounts | |
| | |
In Thousands | |
| ASSETS | |
| | |
| Cash and balances due from depository institutions: | |
| | |
| Noninterest-bearing balances and currency and coin | |
| | |
| Interest-bearing balances | |
| 6,782 | |
| Securities: | |
| | |
| Held-to-maturity securities | |
| | |
| Available-for-sale securities | |
| | |
| Federal funds sold and securities purchased under agreements to resell: | |
| | |
| Federal funds sold in domestic offices | |
| | |
| Securities purchased under agreements to resell | |
| | |
| Loans and lease financing receivables: | |
| | |
| Loans and leases held for sale | |
| | |
| Loans and leases, net of unearned income | |
| | |
| LESS: Allowance for loan and lease losses | |
| | |
| Loans and leases, net of unearned income and allowance | |
| 0 | |
| Trading Assets | |
| | |
| Premises and fixed assets (including capitalized leases) | |
| 191 | |
| Other real estate owned | |
| | |
| Investments in unconsolidated subsidiaries and associated companies | |
| | |
| Direct and indirect investments in real estate ventures | |
| | |
| Intangible assets | |
| | |
| Goodwill | |
| | |
| Other intangible assets | |
| 1,121 | |
| Other assets | |
| 110,816 | |
| | |
| | |
| Total assets | |
| 118,910 | |
| | |
Dollar Amounts | |
| | |
In Thousands | |
| LIABILITIES | |
| | |
| Deposits: | |
| | |
| In domestic offices | |
| | |
| Noninterest-bearing | |
| | |
| Interest-bearing | |
| | |
| In foreign offices, Edge and Agreement subsidiaries, and IBFs | |
| | |
| Noninterest-bearing | |
| | |
| Interest-bearing | |
| | |
| Federal funds purchased and securities sold under agreements to repurchase: | |
| | |
| Federal funds purchased in domestic offices | |
| | |
| Securities sold under agreements to repurchase | |
| | |
| Trading liabilities | |
| |
| Other borrowed money | |
| |
| (includes mortgage indebtedness and obligations under capitalized leases) | |
| |
| Subordinated notes and debentures | |
| |
| Other liabilities | |
| 3,059 | |
| | |
| | |
| Total liabilities | |
| 3,059 | |
| | |
| | |
| EQUITY CAPITAL | |
| | |
| Perpetual preferred stock and related surplus | |
| | |
| Common stock | |
| 500 | |
| Surplus (exclude all surplus related to preferred stock) | |
| 105,803 | |
| Retained earnings | |
| 9,548 | |
| Accumulated other comprehensive income | |
| | |
| Other equity capital components | |
| | |
| | |
| | |
| Total institution equity capital | |
| 115,851 | |
| Noncontrolling (minority) interests in consolidated subsidiaries | |
| | |
| | |
| | |
| Total equity capital | |
| | |
| | |
| 115,851 | |
| Total liabilities, and equity capital | |
| 118,910 | |
I, Amanda Albert, Controller of the above-named
State Non-Depository Trust Company, do hereby declare that this Report of Condition has been prepared in conformance with the instructions
issued by the appropriate State regulatory authority and is true to the best of my knowledge and belief.
| /s/ Amanda Albert | | |
| Amanda Albert | | |
| Controller | | |
We, the undersigned directors, attest to
the correctness of this Report of Condition and declare that it has been examined by us and to the best of our knowledge and belief
has been prepared in conformance with the instructions issued by the appropriate State regulatory authority and is true and correct.
| /s/ Rodman Ward |
|
/s/ John Hebert |
| Rodman Ward |
|
John Hebert |
Exhibit 107
Calculation of Filing Fee Tables
Form S-3
(Form Type)
Clearway Energy, Inc.
(Exact Name of Registrant as Specified in its Charter)
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 |
Equity |
Class A Common stock, par value $0.01 per share |
Rule 456(b) and Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| |
Equity |
Class C Common stock, par value $0.01 per share |
Rule 456(b) and Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| |
Debt |
Debt securities |
Rule 456(b) and Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| |
Equity |
Preferred stock, par value $0.01 per share |
Rule 456(b) and Rule 457(r)(1) |
(2) |
(2) |
(2) |
(1) |
(1) |
|
|
|
|
| Fees Previously Paid |
N/A |
N/A |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
|
|
| Carry Forward Securities |
| Carry Forward Securities |
N/A |
N/A |
N/A |
N/A |
|
N/A |
|
|
N/A |
N/A |
N/A |
N/A |
| |
Total Offering Amounts |
|
N/A |
|
N/A |
|
|
|
|
| |
Total Fees Previously Paid |
|
|
|
N/A |
|
|
|
|
| |
Total Fee Offsets |
|
|
|
N/A |
|
|
|
|
| |
Net Fee Due |
|
|
|
N/A |
|
|
|
|
| (1) | The Registrant is deferring payment of the registration fee pursuant to Rule 456(b) under the Securities Act of 1933, as
amended (the “Securities Act”) and is omitting this information in reliance on Rule 456(b) and Rule 457(r) under
the Securities Act. |
| (2) | An unspecified aggregate initial offering price, principal amount or number of securities of each identified class is being registered
as may from time to time be issued at unspecified prices or upon conversion of, or in exchange for, or upon exercise of securities registered
hereunder to the extent any such securities are, by their terms, convertible into, or exchangeable or exercisable for, such securities.
Separate consideration may or may not be received for securities that are issuable upon conversion of, or in exchange for, or upon exercise
of, convertible or exchangeable securities. |
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