SECURITIES AND EXCHANGE
COMMISSION
Washington, D.C. 20549
Form F-3
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
TEVA
PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of registrant as specified in its charter and translation of
registrants name into English)
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Israel |
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5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel
972-3-926-7267 |
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N/A |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
(Address and telephone number of registrants principal executive offices) |
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TEVA PHARMACEUTICAL FINANCE IV, LLC |
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TEVA PHARMACEUTICAL FINANCE V, LLC |
(Exact name of registrant as specified in its charter) |
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(Exact name of registrant as specified in its charter) |
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Delaware |
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22-1734359 |
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Delaware |
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22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
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TEVA PHARMACEUTICAL FINANCE VI, LLC |
(Exact name of registrant as specified in its charter) |
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Delaware |
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22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
1090 Horsham Road
North Wales, Pennsylvania 19454
Attention: Deborah Griffin
(215) 591-3000
(Address and telephone number of registrants principal executive offices)
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TEVA PHARMACEUTICAL FINANCE COMPANY B.V. |
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TEVA PHARMACEUTICAL FINANCE IV B.V. |
(Exact name of registrant as specified in its charter) |
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(Exact name of registrant as specified in its charter) |
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Curaçao |
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N/A |
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Curaçao |
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N/A |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
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TEVA PHARMACEUTICAL FINANCE V B.V. |
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TEVA PHARMACEUTICAL FINANCE N.V. |
(Exact name of registrant as specified in its charter) |
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(Exact name of registrant as specified in its charter) |
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Curaçao |
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N/A |
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Curaçao |
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N/A |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
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(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer
Identification No.) |
Schottegatweg Oost 29-D
Curaçao
Attention: George Bergmann
Tel. +5999 7366066
Fax. +5999 7367066
(Address and telephone number of registrants principal executive offices)
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TEVA PHARMACEUTICAL FINANCE NETHERLANDS II B.V. |
(Exact name of registrant as specified in its charter) |
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Netherlands |
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N/A |
(State or other jurisdiction of
incorporation or organization) |
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(I.R.S. Employer Identification No.) |
Piet Heinkade 107
1019 GM Amsterdam, Netherlands
Attention:
+31 (0)20-2193000
(Address and telephone number of registrants principal executive offices)
Teva
Pharmaceuticals USA, Inc.
1090 Horsham Road
North Wales, Pennsylvania 19454
Attention: Deborah Griffin
(215) 591-3000
(Name, address and telephone number of agent for service)
with copies
to:
Jeffrey S. Hochman, Esq.
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
(212) 728-8000
Approximate
date of commencement of proposed sale to the public: From time to time after this registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check
the following box. ¨
If any of the securities being registered on
this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box. x
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.C. 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. x
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.C. filed to register
additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ¨
CALCULATION OF REGISTRATION FEE
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Title of each class of securities
to be registered (1) |
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Amount
to be registered (1) |
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Proposed maximum offering price per unit |
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Proposed maximum aggregate offering price |
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Amount of registration fee (2) |
Teva Pharmaceutical Industries Limited Ordinary Shares |
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$0 |
Teva Pharmaceutical Industries Limited Purchase Contracts (3) (4) |
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$0 |
Teva Pharmaceutical Industries Limited Warrants (3) (5) |
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$0 |
Teva Pharmaceutical Industries Limited Units (3) (6) |
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$0 |
Teva Pharmaceutical Industries Limited Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Industries Limited Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance IV, LLC Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance IV, LLC Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance V, LLC Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance V, LLC Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance VI, LLC Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance VI, LLC Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance Company B.V. Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance Company B.V. Subordinated Debt
Securities (3) |
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$0 |
Teva Pharmaceutical Finance IV B.V. Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance IV B.V. Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance V B.V. Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance V B.V. Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance N.V. Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance N.V. Subordinated Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance Netherlands II B.V. Senior Debt Securities (3) |
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$0 |
Teva Pharmaceutical Finance Netherlands II B.V. Subordinated Debt Securities
(3) |
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$0 |
Guarantees by Teva Pharmaceutical Industries Limited of Debt Securities of each finance
subsidiary listed above (7) |
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$0 |
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(1) |
These offered securities may be sold separately, together or as units with other offered securities. An indeterminate aggregate initial offering price or number of
securities of each identified class is being registered as may from time to time be issued at indeterminate prices. Separate consideration may or may not be received for securities that are issuable on exercise, conversion or exchange of other
securities or that are issued in units or represented by depositary shares. |
(2) |
In accordance with Rule 456(b) and Rule 457(r), the Registrants are deferring payment of all of the registration fee. |
(3) |
Also includes such currently indeterminate number of ordinary shares of Teva Pharmaceutical Industries Limited as may be issued upon conversion of or exchange for any
securities that provide for conversion or exchange into such ordinary shares. |
(4) |
There are being registered hereby such indeterminate number of Purchase Contracts as may be issued at indeterminate prices. Such Purchase Contracts may be issued
together with any of the other securities being registered hereby. Purchase Contracts may require the holder thereof to purchase or sell any of the other securities registered hereby or to purchase or sell (i) securities of an entity
unaffiliated with any of the registrants, a basket of such securities, an index or indices of such securities or any combination of the above, (ii) currencies or (iii) commodities. |
(5) |
There are being registered hereby such indeterminate number of Warrants as may be issued at indeterminate prices. Such Warrants may be issued together with any of the
other securities registered hereby. Warrants may be exercised to purchase any of the other securities registered hereby or to purchase or sell (i) securities of an entity unaffiliated with any of the registrants, a basket of such securities, an
index or indices of such securities or any combination of the above, (ii) currencies or (iii) commodities. |
(6) |
There are being registered hereby such indeterminate number of Units as may be issued at indeterminate prices. Units may consist of any combination of the securities
being registered hereby. |
(7) |
The guarantees will be issued by Teva Pharmaceutical Industries Limited. No separate consideration will be received for any of these guarantees.
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED
American Depositary Shares, each representing
one Ordinary Share, Debt Securities,
Purchase Contracts, Units and
Warrants
TEVA PHARMACEUTICAL FINANCE IV, LLC
TEVA PHARMACEUTICAL FINANCE V, LLC
TEVA PHARMACEUTICAL FINANCE VI, LLC
TEVA PHARMACEUTICAL FINANCE COMPANY
B.V.
TEVA PHARMACEUTICAL FINANCE IV B.V.
TEVA PHARMACEUTICAL FINANCE V B.V.
TEVA PHARMACEUTICAL FINANCE N.V.
TEVA PHARMACEUTICAL FINANCE NETHERLANDS II B.V.
Debt Securities, fully and unconditionally guaranteed by
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
We and our finance subsidiaries
may offer and sell from time to time:
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American Depositary Shares, or ADSs, each representing one ordinary share; |
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senior or subordinated debt securities; |
We will provide the specific terms and initial public offering prices of these securities in supplements to this prospectus. You should
read this prospectus and any supplement carefully before you invest.
We may sell these securities to or through underwriters
and also to other purchasers or through agents. The names of any underwriters or agents will be stated in an accompanying prospectus supplement.
Our ADSs are quoted on the New York Stock Exchange under the symbol TEVA. If we decide to list any of these other securities on a national securities exchange upon issuance, the applicable
prospectus supplement to this prospectus will identify the exchange and the date when we expect trading to begin.
Investing in
our securities involves risks. You should consider the risk factors described in any accompanying prospectus supplement and the documents we incorporate by reference. See Risk Factors beginning on page 4 of
this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or
disapproved of these securities or passed upon the adequacy or accuracy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is February 9, 2015.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a Registration Statement that Teva and the other registrants filed with the United States Securities and
Exchange Commission (the SEC) utilizing a shelf registration process. Under this shelf process, any of the registrants may, from time to time, sell the securities described in this prospectus in one or more offerings.
This prospectus provides you with a general description of the securities which we may offer and the related guarantees, if
any, of those securities. Each time we sell securities we will provide a prospectus supplement that will contain specific information about the terms of the offering. The prospectus supplement may also add, update or change information contained in
this prospectus. You should read both this prospectus and any prospectus supplement together with additional information described below under the heading Where You Can Find More Information before purchasing any of our securities.
You should rely only on the information contained or incorporated by reference in this prospectus. Incorporated by
reference means that we can disclose important information to you by referring you to another document filed separately with the SEC. We have not authorized any other person to provide you with different information. If anyone provides you
with different or inconsistent information, you should not rely on it. We are not making, nor will we make, an offer to sell securities in any jurisdiction where the offer or sale is not permitted. You should assume that the information appearing in
this prospectus and any supplement to this prospectus is current only as of the dates on their respective covers. Our business, financial condition, results of operations and prospects may have changed since that date.
Unless the context otherwise requires, references in this prospectus and any supplement to this prospectus to Teva,
we, us and our refer to Teva Pharmaceutical Industries Limited and its subsidiaries, collectively. References to Teva Finance IV LLC refer to Teva Pharmaceutical Finance IV, LLC. References to
Teva Finance V LLC refer to Teva Pharmaceutical Finance V, LLC. References to Teva Finance VI LLC refer to Teva Pharmaceutical Finance VI, LLC. References to the LLCs refer to Teva Finance IV LLC, Teva Finance V
LLC and Teva Finance VI LLC. References to Teva Finance Company BV refer to Teva Pharmaceutical Finance Company B.V. References to Teva Finance IV BV refer to Teva Pharmaceutical Finance IV B.V. References to Teva
Finance V BV refer to Teva Pharmaceutical Finance V B.V. References to Teva Finance NV refer to Teva Pharmaceutical Finance N.V. References to the BVs refer to Teva Finance Company BV, Teva Finance IV BV, Teva Finance V
BV and Teva Finance NV. References to Teva Finance Netherlands refer to Teva Pharmaceutical Finance Netherlands II B.V. References to the finance subsidiaries refer to the LLCs, the BVs and Teva Finance Netherlands,
collectively.
1
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
We are a global pharmaceutical company, committed to increasing access to high-quality healthcare by developing, producing and marketing
affordable generic medicines and a focused portfolio of specialty pharmaceutical products. Our business includes two primary segments: generic medicines and specialty medicines, as well as certain additional activities that are not part of these
segments, such as our joint venture with The Procter & Gamble Company for the sale of over the counter products. As the worlds leading generic medicines company with a strong specialty medicines portfolio, we are strategically positioned
to benefit from current changes in the global healthcare environment.
We seek to address unmet patient needs while
capitalizing on evolving market, economic and legislative dynamics in global healthcare. These dynamics include the aging population, increased spending on pharmaceuticals in emerging markets, economic pressure on governments and private payors to
provide accessible healthcare solutions, legislative and regulatory reforms, an increase in patient awareness and the growing importance of over-the-counter medicines.
We believe that our dedicated leadership and employees, world-leading generics expertise and portfolio, focused specialty portfolio, global reach, integrated R&D capabilities and global infrastructure
and scale position us to take advantage of opportunities created by these dynamics.
Segments
We operate our business in two segments:
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Generic medicines, which include chemical and therapeutic equivalents of originator pharmaceuticals in a variety of dosage forms, including
tablets, capsules, ointments, creams, liquids, injectables and inhalants. We are the leading generic drug company in the United States and Europe, and we have a significant or growing presence in our Rest of the World markets. We are also one of the
worlds leading manufacturers of active pharmaceutical ingredients. |
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Specialty medicines, which include several franchises, most significantly our core therapeutic areas of central nervous system medicines such as
Copaxone®, Azilect® and Nuvigil® and of
respiratory medicines such as ProAir® HFA and QVAR®. Our specialty medicines segment includes other therapeutic areas, such as oncology, womens health and selected other areas. |
In addition to these two segments, we have other activities, primarily PGT Healthcare, our over-the-counter joint venture with The
Procter & Gamble Company.
Teva was incorporated in Israel on February 13, 1944, and is the successor to a number of
Israeli corporations, the oldest of which was established in 1901. Our executive offices are located at 5 Basel Street, P.O. Box 3190, Petach Tikva 4951033, Israel, and our telephone number is +972-3-926-7267.
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FINANCE SUBSIDIARIES
Teva has organized various finance subsidiaries for the purpose of issuing debt securities pursuant to this prospectus. There are no
separate financial statements of the finance subsidiaries in this prospectus because these entities are, or will be treated as, subsidiaries of Teva for financial reporting purposes. We do not believe the financial statements would be helpful to the
holders of the securities of these entities because:
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Teva is a reporting company under the Securities Exchange Act of 1934 (referred to in this prospectus as the Exchange Act) and owns,
directly or indirectly, all of the voting interests of these entities; |
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these entities do not have any independent operations and do not propose to engage in any activities other than issuing securities and investing the
proceeds in Teva or its affiliates; and |
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these entities obligations under the securities will be fully and unconditionally guaranteed by Teva. |
These entities are exempt from the information reporting requirements of the Exchange Act.
Teva Finance IV LLC
Teva Finance IV LLC is a limited liability company that was formed on December 1, 2008 under the Delaware Limited Liability Company Act, as amended. Its address is 1090 Horsham Road, North Wales,
Pennsylvania 19454, telephone number (215) 591-3000.
Teva Finance V LLC
Teva Finance V LLC is a limited liability company that was formed on December 1, 2011 under the Delaware Limited Liability Company
Act, as amended. Its address is 1090 Horsham Road, North Wales, Pennsylvania 19454, telephone number (215) 591-3000.
Teva Finance
VI LLC
Teva Finance VI LLC is a limited liability company that was formed on December 1, 2011 under the Delaware
Limited Liability Company Act, as amended. Its address is 1090 Horsham Road, North Wales, Pennsylvania 19454, telephone number (215) 591-3000.
Teva Finance Company BV
Teva Finance BV is a Curaçao private
limited liability company that was formed on November 23, 2005. Its address is Schottegatweg Oost 29D, Curaçao, telephone number +5999 7366066.
Teva Finance IV BV
Teva Finance IV BV is a Curaçao private
limited liability company that was formed on June 28, 2011. Its address is Schottegatweg Oost 29D, Curaçao, telephone number +5999 7366066.
Teva Finance V BV
Teva Finance V BV is a Curaçao private
limited liability company that was formed on June 28, 2011. Its address is Schottegatweg Oost 29D, Curaçao, telephone number +5999 7366066.
Teva Finance NV
Teva Finance NV is a Curaçao limited
liability company that was formed on December 29, 2000. Its address is Schottegatweg Oost 29D, Curaçao, telephone number +5999 7366066.
Teva Finance Netherlands
Teva Finance Netherlands is a Dutch
private limited liability company that was formed on October 16, 2013. Its address is Piet Heinkade 107, 1019 GM Amsterdam, Netherlands, telephone number +31 (0)20-2193000.
3
RISK FACTORS
Investing in our securities involves risk. Please see the risk factors set forth in Part I, Item 3 in our Annual Report on Form
20-F for our most recent fiscal year, as updated by our Reports of Foreign Private Issuer on Form 6-K and other filings we make from time to time with the SEC, as incorporated by reference in this prospectus. Additional risk factors may be included
in a prospectus supplement relating to a particular series or offering of securities. Before making an investment decision, you should carefully consider these risks as well as other information we include or incorporate by reference in this
prospectus and any accompanying prospectus supplement.
FORWARD-LOOKING STATEMENTS
The disclosure and analysis in this prospectus, including statements that are predictive in nature, or that depend upon
or refer to future events or conditions, contain or incorporate by reference some forward-looking statements within the meaning of Section 21E of the Securities Exchange Act of 1934, as amended, referred to as the Exchange Act, and
Section 27A of the Securities Act of 1933, as amended, referred to as the Securities Act. Forward-looking statements describe our current expectations or forecasts of future events. You can identify these statements by the fact that they do not
relate strictly to historical or current facts. Such statements may include words such as anticipate, estimate, expect, project, intend, plan, believe and other
words and terms of similar meaning in connection with any discussion of future operating or financial performance. In particular, these statements include, among other things, statements relating to:
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the development and launch of our products, including product approvals and results of clinical trials; |
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projected markets and market size; |
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costs, cost savings and other results of our restructuring program; |
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anticipated results of litigation; |
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our projected revenues, market share, expenses, net income margins, profitability and capital expenditures; and |
The forward-looking statements contained or incorporated by reference herein involve a number of known and unknown risks and uncertainties that could cause our future results, performance or achievements
to differ significantly from the results, performance or achievements expressed or implied by such forward-looking statements. You should understand that many important factors, in addition to those discussed or incorporated by reference in this
prospectus, could cause our results to differ materially from those expressed in the forward-looking statements. Potential factors that could affect our results, include, in addition to others not described in this prospectus, those described or
reflected under Risk Factors on page 4 of this prospectus. These are factors that we think could cause our actual results to differ materially from our expected results.
Forward-looking statements speak only as of the date on which they are made, and we undertake no obligation to update any forward-looking
statements or other information contained in this prospectus, whether as a result of new information, future events or otherwise. You are advised, however, to consult any additional disclosures we make in our Annual Reports on Form 20-F and our
Reports of Foreign Private Issuer on Form 6-K that are filed with the SEC. See Risk Factors on page 4 of this prospectus. Other factors besides those listed here could also adversely affect us. This discussion is provided as permitted by
the Private Securities Litigation Reform Act of 1995.
4
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges in accordance with U.S. GAAP for each of the periods presented below was as follows:
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Year Ended December 31, |
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2014 |
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2013 |
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2012 |
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2011 |
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2010 |
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Ratio of earnings to fixed charges |
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11.8 |
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4.7 |
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5.7 |
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12.5 |
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16.5 |
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The finance subsidiaries did not have any independent operations for the relevant periods.
PRICE RANGE OF ADSs AND ORDINARY SHARES
Teva Ordinary Shares
Tevas ordinary shares have been listed on the
Tel Aviv Stock Exchange (TASE) since 1951. As of December 31, 2014, Teva had 851,871,888 ordinary shares outstanding, including ordinary shares underlying our outstanding American Depositary Shares (ADSs).
The table below sets forth in New Israeli Shekels (NIS) the high and low intraday sale prices of the ordinary shares on the
TASE during the periods indicated, as reported by the TASE.
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Period |
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High |
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Low |
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Last six months: |
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February 2015 (until February 5) |
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226.70 |
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218.00 |
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January 2015 |
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237.70 |
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217.80 |
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December 2014 |
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230.90 |
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213.20 |
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November 2014 |
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225.10 |
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211.00 |
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October 2014 |
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210.00 |
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187.00 |
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September 2014 |
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199.50 |
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182.70 |
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August 2014 |
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190.70 |
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175.80 |
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Last eight quarters: |
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Q4 2014 |
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230.90 |
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187.00 |
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Q3 2014 |
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199.50 |
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175.80 |
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Q2 2014 |
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187.30 |
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168.60 |
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Q1 2014 |
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181.30 |
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138.70 |
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Q4 2013 |
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146.80 |
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128.00 |
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Q3 2013 |
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148.30 |
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131.90 |
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Q2 2013 |
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147.90 |
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135.10 |
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Q1 2013 |
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152.30 |
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136.60 |
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Last five years: |
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2014 |
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230.90 |
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138.70 |
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2013 |
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152.30 |
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128.00 |
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2012 |
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174.30 |
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137.10 |
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2011 |
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205.90 |
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129.80 |
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2010 |
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242.70 |
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176.90 |
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On February 5, 2015, the last reported sale price of the ordinary shares on the TASE was NIS 222.40.
Teva ADSs
Tevas ADSs, which have been traded in the U.S. since 1982, were listed and admitted to trading on the Nasdaq National Market in
October 1987 and were subsequently traded on the Nasdaq Global Select Market. On May 30, 2012, Teva transferred the listing of its ADSs to the New York Stock Exchange. The ADSs are quoted
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under the symbol TEVA. J.P. Morgan Chase Bank serves as depositary for the ADSs. As of December 31, 2014, Teva had 729,850,138 ADSs outstanding. Each ADS represents one ordinary
share; accordingly, the number of the outstanding ADSs is included in the number of outstanding ordinary shares. For a more detailed description of Teva ADSs, see Description of Teva American Depositary Shares.
The following table sets forth information regarding the high and low prices of an ADS on NYSE or NASDAQ, as applicable, for the periods
specified in U.S. dollars.
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Period |
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High |
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Low |
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Last six months: |
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February 2015 (until February 6) |
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|
58.20 |
|
|
|
56.27 |
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January 2015 |
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|
61.90 |
|
|
|
54.53 |
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December 2014 |
|
|
58.95 |
|
|
|
54.48 |
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November 2014 |
|
|
58.87 |
|
|
|
55.67 |
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October 2014 |
|
|
57.10 |
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|
|
47.36 |
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September 2014 |
|
|
54.25 |
|
|
|
50.39 |
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August 2014 |
|
|
54.75 |
|
|
|
50.64 |
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Last eight quarters: |
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|
|
|
|
|
|
|
Q4 2014 |
|
|
58.95 |
|
|
|
47.36 |
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Q3 2014 |
|
|
55.70 |
|
|
|
50.39 |
|
Q2 2014 |
|
|
54.70 |
|
|
|
48.35 |
|
Q1 2014 |
|
|
52.94 |
|
|
|
39.80 |
|
Q4 2013 |
|
|
41.74 |
|
|
|
36.26 |
|
Q3 2013 |
|
|
41.65 |
|
|
|
37.36 |
|
Q2 2013 |
|
|
40.48 |
|
|
|
37.42 |
|
Q1 2013 |
|
|
41.16 |
|
|
|
36.97 |
|
Last five years: |
|
|
|
|
|
|
|
|
2014 |
|
|
58.95 |
|
|
|
39.80 |
|
2013 |
|
|
41.74 |
|
|
|
32.26 |
|
2012 |
|
|
46.65 |
|
|
|
36.63 |
|
2011 |
|
|
57.08 |
|
|
|
35.00 |
|
2010 |
|
|
64.95 |
|
|
|
46.99 |
|
On February 6, 2015, the last reported sale price for the ADSs on NYSE was $57.60.
Various other stock exchanges quote derivatives and options on our ADSs under the symbol TEVA.
Dividends
We have paid
dividends on a regular quarterly basis since 1986. Tevas dividend policy is regularly reviewed by Tevas board of directors based upon conditions then existing, including our earnings, financial condition, capital requirements and other
factors. Our ability to pay cash dividends may be restricted by instruments governing our debt obligations. Dividends are declared and paid in NIS. Dividends are converted into U.S. dollars and paid by the depositary of our ADSs for the benefit of
owners of ADSs, and are subject to exchange rate fluctuations between the NIS and the U.S. dollar between the declaration date and the date of actual payment.
Dividends paid by an Israeli company to shareholders residing outside Israel are generally subject to withholding of Israeli income tax at a rate of up to 25%. Such tax rates apply unless a lower rate is
provided in a treaty between Israel and the shareholders country of residence. In our case, the applicable withholding tax rate will depend on the particular Israeli production facilities that have generated the earnings that are the source of
the specific dividend and, accordingly, the applicable rate may change from time to time.
6
The following table sets forth the amounts of the dividends paid in respect of each period
indicated prior to deductions for applicable Israeli withholding taxes (in cents per share).
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2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
|
|
In cents per share |
|
1st interim |
|
|
34.7 |
|
|
|
32.0 |
|
|
|
26.3 |
|
|
|
23.2 |
|
|
|
18.8 |
|
2nd interim |
|
|
35.3 |
|
|
|
32.2 |
|
|
|
25.0 |
|
|
|
23.5 |
|
|
|
18.1 |
|
3rd interim |
|
|
32.1 |
|
|
|
32.6 |
|
|
|
25.7 |
|
|
|
21.9 |
|
|
|
19.3 |
|
4th interim |
|
|
33.8 |
|
|
|
34.3 |
|
|
|
31.1 |
|
|
|
26.8 |
|
|
|
21.8 |
|
USE OF PROCEEDS
Unless the applicable prospectus supplement states otherwise, the net proceeds from the sale of securities offered by Teva or the finance
subsidiaries will be used for general corporate purposes, which may include additions to working capital, investments in or extensions of credit to our subsidiaries, the repayment of indebtedness, repurchases of our ADSs, ordinary shares and other
securities and future acquisitions.
DESCRIPTION OF ORDINARY SHARES
Description of Ordinary Shares
The par value of Tevas ordinary shares is NIS 0.10 per share, and all issued and outstanding ordinary shares are fully paid and non-assessable. Holders of ordinary shares are entitled to
participate equally in the payment of dividends and other distributions and, in the event of liquidation, in all distributions after the discharge of liabilities to creditors. All ordinary shares represented by the ADSs will be issued in registered
form only. Ordinary shares do not entitle their holders to preemptive rights. Voting is on the basis of one vote per share.
Neither Tevas memorandum of association, nor its articles of association (the Articles) or the laws of the State of
Israel restrict the ownership or voting of Tevas ordinary shares or ADSs by non-residents or persons who are not citizens of Israel, except with respect to citizens or residents of countries that are in a state of war with Israel.
Meetings of Shareholders
Under the Israeli Companies Law (the Companies Law) and Tevas Articles, Teva is required to hold an annual meeting every
year no later than fifteen months after the previous annual meeting. In addition, Teva is required to convene a special meeting of shareholders:
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upon the demand of two directors or one-quarter of the serving directors; |
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upon the demand of one or more shareholders holding not less than 5% of Tevas issued share capital and 1% or more of its voting rights; and
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upon the demand of one or more shareholders holding at least 5% of Tevas voting rights; |
provided that a demand by a shareholder to convene a special shareholders meeting must set forth the items to be considered at that meeting and comply
with all other requirements of applicable law and the Articles.
If the board of directors receives a demand to convene a
special meeting, it must publicly announce the scheduling of the meeting within 21 days after the demand was delivered.
7
The agenda at a general meeting is determined by the board of directors. The agenda must
also include proposals for which the convening of a special meeting was demanded, as well as any proposal requested by one or more shareholders who hold at least 1% of Tevas voting rights. Pursuant to a recent amendment to Israeli law, such a
proposal requested by a shareholder needs to be submitted within seven days of publication of the notice with respect to the companys general meeting of shareholders, or, if the company publishes a preliminary notice stating its intention to
convene such meeting and the agenda thereof, within 14 days of such preliminary notice. Under the Articles, such a proposal requested by a shareholder to include a matter on the agenda of a general meeting must be submitted in writing to the Company
no later than 14 days after the date of first publication by the Company of its annual consolidated financial statements preceding the annual meeting at which the shareholders are to receive the consolidated financial statements for such year. Any
such demands must comply with the requirements of applicable law and the Articles. Pursuant to the Articles, these requirements include requirements similar to those mentioned above with respect to a demand by a shareholder for a special
shareholders meeting.
Pursuant to the Companies Law, the regulations thereunder and the Articles, Teva is generally required
to announce the convening of shareholder meetings at least 35 days in advance. Pursuant to the Articles, Teva is not required to deliver personal notices of a general meeting or of any adjournment thereof to any shareholder. However, Teva will
publish its decision to convene a general meeting in a manner reasonably determined by Teva, including by publishing a notice in one or more daily newspapers in Israel or in one or more international wire services, and such notice will be deemed to
have been duly given on the date of such publication. The shareholders entitled to participate and vote at the meeting are the shareholders as of the record date set in the decision to convene the meeting. Under Israeli regulations, in certain
circumstances public companies may be required to send voting cards and position papers to their shareholders. Under the Articles, shareholder meetings are required to be convened in Israel, unless the Companys center of management has been
transferred to another country in accordance with the Articles.
The quorum required for a meeting of shareholders consists of
at least two shareholders present in person or by proxy or represented by an authorized representative, who jointly hold 25% or more of Tevas paid-up share capital. A meeting adjourned for lack of a quorum generally is adjourned to the same
day in the following week at the same time and place or at another date, time and place as shall be set forth by the board of directors in a notice to all persons who are entitled to receive notice of general meetings. Should no legal quorum be
present at such reconvened meeting a half hour following the time set for such meeting, the required quorum consists of any two shareholders present, in person or by proxy, who jointly hold 20% or more of Tevas paid-up share capital.
A shareholder who intends to vote at a meeting must demonstrate ownership of shares in accordance with the Companies Law and
the regulations promulgated thereunder. Under these regulations, a shareholder whose shares are registered with a member of the Tel Aviv Stock Exchange must provide Teva with an authorization from such member regarding his ownership as of the record
date.
The Companies Law provides that resolutions on certain matters, such as amending a companys articles of
association, exercising the authority of the board of directors in certain circumstances, appointing auditors, appointing statutory independent directors, approving certain transactions, increasing or decreasing the registered share capital and
approving certain mergers, must be made by the shareholders at a general meeting. A company may determine in its articles of association certain additional matters in respect of which resolutions by the shareholders at a general meeting will be
required.
Generally, under the Articles, shareholder resolutions (for example, resolution for the appointment of auditors)
are deemed adopted if approved by the holders of a simple majority of the voting rights represented at a general meeting in person or by proxy and voting, unless a different majority is required by law or pursuant to the Articles. Pursuant to the
Companies Law and the Articles, certain resolutions (for example, resolutions amending many of the provisions of the Articles) require the affirmative vote of at least 75% of the shares voting
8
in person or by proxy, and certain amendments of the Articles require the affirmative vote of at least 85% of the shares voting in person or by proxy, unless a lower percentage shall have been
established by the board of directors by a majority of three-quarters of those directors voting at a meeting of the board of directors held prior to that general meeting.
Change of Control
Subject to certain exceptions, the Companies Law
provides that a merger requires approval both by the board of directors and by the shareholders of each of the merging companies.
In approving a merger, the board of directors of both merging companies must determine that there is no reasonable concern that, as a result of the merger, the surviving company will not be able to
satisfy its obligations to its creditors. Similarly, upon the request of a creditor of either party to the proposed merger, an Israeli court may prevent or delay the merger if it concludes that there exists a reasonable concern that, as a result of
the merger, the surviving company will not be able to satisfy the obligations of the merging parties. A court may also issue other instructions for the protection of the creditors rights in connection with a merger. Further, a merger may not
be completed unless at least (i) 50 days have passed from the time that the requisite proposals for the approval of the merger were filed with the Israeli Registrar of Companies; and (ii) 30 days have passed since the merger was approved
by the shareholders of each party.
Under the Companies Law, subject to certain exceptions, an acquisition of shares in a
public company must be made by means of a tender offer if, as a result of the acquisition, the purchaser would hold (i) 25% or more of the voting rights of the company if there is no other holder of 25% or more of the companys voting
rights; or (ii) more than 45% of the voting rights of the company if there is no other holder of more than 45% of the companys voting rights. This rule does not apply to a purchase of shares in a private placement by the
company that receives shareholder approval. The board of directors must provide the shareholders with its opinion as to the advisability of the tender offer, or if it is unable to do so, may refrain from providing such opinion, provided that it
reports the reasons for not so doing. The board of directors must also disclose any personal interest of any of its members in the proposed acquisition.
CEO and Center of Management
Under the Articles, Tevas chief
executive officer as well as the majority of the members of the board of directors are required to be residents of Israel, unless Tevas center of management shall have been transferred to another country in accordance with the Articles. The
Articles require that Tevas center of management be in Israel, unless the board of directors otherwise resolves, with a super majority of three-quarters of the participating votes.
DESCRIPTION OF AMERICAN DEPOSITARY SHARES
Set forth below is a summary of the deposit agreement, as amended, among Teva, JPMorgan Chase Bank, N.A., as depositary, which we refer
to as the depositary, and the holders from time to time of ADSs. This summary is not complete and is qualified in its entirety by the amended and restated deposit agreement, a copy of which has been filed as an exhibit to the Registration Statement
on Form F-6 filed with the SEC on October 30, 2012. Additional copies of the deposit agreement are available for inspection at the principal office of the depositary, One Chase Manhattan Plaza, New York, New York 10005.
American Depositary Shares and Receipts
Each ADS represents one ordinary share of Teva deposited with the custodian. ADSs may be issued in uncertificated form or may be evidenced by an American Depositary Receipt, or ADR. ADRs evidencing a
specified number of ADSs are issuable by the depositary pursuant to the deposit agreement.
9
Deposit and Withdrawal of Ordinary Shares
The depositary has agreed that, upon deposit with the custodian of ordinary shares of Teva accompanied by an appropriate confirmation or
confirmations of a book-entry transfer or instrument or instruments of transfer or endorsement in form satisfactory to the custodian and any certificates as may be required by the depositary or the custodian, the depositary will execute and deliver
at its corporate trust office, upon payment of the fees, charges and taxes provided in the deposit agreement, to or upon the written order of the person or persons entitled thereto, uncertificated securities or an ADR registered in the name of such
person or persons for the number of ADSs issuable with respect to such deposit.
The depositary has agreed that, upon deposit
with the custodian of ordinary shares of Teva accompanied by an appropriate confirmation or confirmations of a book-entry transfer or instrument or instruments of transfer or endorsement in form satisfactory to the custodian and any certificates as
may be required by the depositary or the custodian, the depositary will execute and deliver at its corporate trust office, upon payment of the fees, charges and taxes provided in the deposit agreement, to or upon the written order of the person or
persons entitled thereto, uncertificated securities or an ADR registered in the name of such person or persons for the number of ADSs issuable with respect to such deposit.
Every person depositing ordinary shares under the deposit agreement shall be deemed to represent and warrant that such ordinary shares are validly issued, fully paid and non-assessable ordinary shares and
that such person is duly authorized to make such deposit, and the deposit of such ordinary shares or sale of ADSs by that person is not restricted under the Securities Act.
Upon surrender of ADSs at the corporate trust office of the depositary, and upon payment of the fees provided in the deposit agreement, ADS holders are entitled to delivery to them or upon their order at
the principal office of the custodian or at the corporate trust office of the depositary of certificates representing the ordinary shares and any other securities, property or cash represented by the surrendered ADSs. Delivery to the corporate trust
office of the depositary shall be made at the risk and expense of the ADS holder surrendering ADSs.
The depositary may
deliver ADSs prior to the receipt of ordinary shares or pre-release. The depositary may deliver ordinary shares upon the receipt and surrender of ADSs that have been pre-released, whether or not such surrender is prior to the termination
of such pre-release or the depositary knows that such ADSs have been pre-released. Each pre-release will be:
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accompanied by a written representation from the person to whom ordinary shares or ADSs are to be delivered that such person, or its customer, owns the
ordinary shares or ADSs to be remitted, as the case may be; |
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at all times fully collateralized with cash or such other collateral as the depositary deems appropriate; |
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terminable by the depositary with no more than five business days notice; and |
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subject to such further indemnities and credit regulations as the depositary deems appropriate. |
The number of ADSs outstanding at any time as a result of pre-releases will not normally exceed 30% of the ordinary shares outstanding
with the depositary; provided, however, that the depositary reserves the right to change or disregard such limit from time to time as it deems appropriate.
Dividends, Other Distributions and Rights
The depositary shall, as
promptly as practicable, convert or cause to be converted into U.S. dollars, to the extent that in its judgment it can reasonably do so and transfer the resulting U.S. dollars to the United States, all cash dividends and other cash distributions
denominated in a currency other than U.S. dollars that it or the custodian receives in respect of the deposited ordinary shares, and to distribute the amount received, net of any
10
fees of the depositary and expenses incurred by the depositary in connection with conversion, to the holders of ADSs. The amount distributed will be reduced by any amounts to be withheld by Teva
or the depositary for applicable taxes, net of expenses of conversion into U.S. dollars. If the depositary determines that any foreign currency received by it or the custodian cannot be so converted on a reasonable basis and transferred, or if any
required approval or license of any government or agency is denied or not obtained within a reasonable period of time, the depositary may distribute such foreign currency received by it or hold such foreign currency uninvested and without liability
for interest thereon for the respective accounts of the ADS holders. If any conversion of foreign currency, in whole or in part, cannot be effected for distribution to some of the holders of ADSs entitled thereto, the depositary may make such
conversion and distribution in U.S. dollars to the extent permissible to such holders of ADSs and may distribute the balance of the currency received by the depositary to, or hold such balance uninvested and without liability for interest thereon
for, the respective accounts of such holders of ADSs.
If any distribution upon any ordinary shares deposited or deemed
deposited under the deposit agreement consists of a dividend in, or free distribution of, additional ordinary shares, the depositary shall, only if Teva so requests, distribute to the holders of outstanding ADSs, on a pro rata basis, additional ADSs
that represent the number of additional ordinary shares received as such dividend or free distribution subject to the terms and conditions of the deposit agreement and net of any fees and expenses of the depositary. In lieu of delivering fractional
ADSs in the event of any such distribution, the depositary will sell the amount of additional ordinary shares represented by the aggregate of such fractions and will distribute the net proceeds to holders of ADSs. If additional ADSs are not so
distributed, each ADS shall thereafter also represent the additional ordinary shares distributed together with the ordinary shares represented by such ADS prior to such distribution.
If Teva offers or causes to be offered to the holders of ordinary shares any rights to subscribe for additional ordinary shares or any
rights of any other nature, the depositary, after consultation with Teva, shall have discretion as to the procedure to be followed in making such rights available to holders of ADSs or in disposing of such rights for the benefit of such holders and
making the net proceeds available to such holders or, if the depositary may neither make such rights available to such holders nor dispose of such rights and make the net proceeds available to such holders, the depositary shall allow the rights to
lapse; provided, however, that the depositary will, if requested by Teva, take action as follows:
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if at the time of the offering of any rights the depositary determines in its discretion that it is lawful and feasible to make such rights available
to all holders of ADSs or to certain holders of ADSs but not other holders of ADSs, the depositary may distribute to any holder of ADSs to whom it determines the distribution to be lawful and feasible, on a pro rata basis, warrants or other
instruments therefor in such form as it deems appropriate; or |
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if the depositary determines in its discretion that it is not lawful and feasible to make such rights available to certain holders of ADSs, it may sell
the rights, warrants or other instruments in proportion to the number of ADSs held by the holder of ADSs to whom it has determined it may not lawfully or feasibly make such rights available, and allocate the net proceeds of such sales (net of the
fees of the depositary and all taxes and governmental charges) for the account of such holders of ADSs otherwise entitled to such rights, warrants or other instruments, upon an averaged or other practical basis without regard to any distinctions
among such holders of ADSs because of exchange restrictions or the date of delivery of any ADS or otherwise. |
In circumstances in which rights would not otherwise be distributed, if a holder of ADSs requests the distribution of warrants or other
instruments in order to exercise the rights allocable to the ADSs of such holder, the depositary will make such rights available to such holder upon written notice from Teva to the depositary that Teva has elected in its sole discretion to permit
such rights to be exercised and such holder has executed such documents as Teva has determined in its sole discretion are reasonably required under applicable law. Upon instruction pursuant to such warrants or other instruments to the depositary
from such holder to exercise such rights, upon payment by such holder to the depositary for the account of such holder of an amount equal to the purchase price of the ordinary shares to be received upon the exercise of the rights, and upon payment
of the fees of the depositary as set forth in such warrants or other instruments, the depositary shall, on behalf of such holder,
11
exercise the rights and purchase the ordinary shares, and Teva shall cause the ordinary shares so purchased to be delivered to the depositary on behalf of such holder. As agent for such holder,
the depositary will cause the ordinary shares so purchased to be deposited under the deposit agreement, and shall issue and deliver to such holder legended ADRs or confirmations with respect to uncertificated ADSs, restricted as to transfer under
applicable securities laws.
The depositary will not offer to the holders of ADSs any rights to subscribe for additional
ordinary shares or rights of any other nature, unless and until such a registration statement is in effect with respect to the rights and the securities to which they relate, or unless the offering and sale of such securities to the holders of such
ADSs are exempt from registration under the provisions of the Securities Act and an opinion of counsel satisfactory to the depositary and Teva has been obtained.
The depositary shall not be responsible for any failure to determine that it may be lawful and feasible to make such rights available to holders of ADSs in general or any holder in particular.
If the depositary determines that any distribution of property is subject to any tax or other governmental charge that the depositary is
obligated to withhold, the depositary may by public or private sale in Israel dispose of all or a portion of such property in such amounts and in such manner as the depositary deems necessary and practicable to pay any such taxes or charges, and the
depositary will distribute the net proceeds of any such sale and after deduction of any taxes or charges to the ADS holders entitled thereto.
Upon any change in nominal value, change in par value, split-up, consolidation or any other reclassification of ordinary shares, or upon any recapitalization, reorganization, merger or consolidation or
sale of assets affecting Teva or to which it is a party, any securities that shall be received by the depositary or the custodian in exchange for or in conversion of or in respect of ordinary shares shall be treated as newly deposited ordinary
shares under the deposit agreement, and ADSs shall thenceforth represent, in addition to the existing deposited securities, the right to receive the new ordinary shares so received in respect of ordinary shares, unless additional ADSs are delivered
or the depositary calls for the surrender of outstanding ADSs to be exchanged for new ADSs.
Record Dates
Whenever any cash dividend or other cash distribution shall become payable, any distribution other than cash shall be made or rights shall
be issued with respect to the ordinary shares, or whenever for any reason the depositary causes a change in the number of ordinary shares that are represented by each ADS, or whenever the depositary shall receive notice of any meeting of holders of
ordinary shares, the depositary shall fix a record date which shall be as close as practicable to the record date applicable to the ordinary shares, provided that the record date established by Teva or the depositary shall not occur on a day on
which the shares or ADSs are not traded in Israel or the U.S.:
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for the determination of the holders of ADSs who shall be: |
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entitled to receive such dividend, distribution or rights, or the net proceeds of the sale, or |
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entitled to give instructions for the exercise of voting rights at any such meeting; or |
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on or after which each ADS will represent the changed number of ordinary shares. |
Reports and Other Communications
Teva will furnish to the depositary and the custodian all notices of shareholders meetings and other reports and communications that are made generally available to the holders of ordinary shares
and English translations of the same. The depositary will make such notices, reports and communications available for inspection by ADS holders at its corporate trust office when furnished by Teva pursuant to the deposit agreement and, upon request
by Teva, will mail such notices, reports and communications to ADS holders at Tevas expense.
12
Voting of the Underlying Ordinary Shares
Upon receipt of notice of any meeting or solicitation of consents or proxies of holders of ordinary shares, if requested in writing, the
depositary shall, as soon as practicable thereafter, mail to the ADS holders a notice containing:
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such information as is contained in the notice received by the depositary; |
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a statement that the holders of ADSs as of the close of business on a specified record date will be entitled, subject to applicable law and the
provisions of Tevas memorandum and articles of association, as amended, to instruct the depositary as to the exercise of voting rights, if any, pertaining to the amount of ordinary shares represented by their respective ADSs; and
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a statement as to the manner in which such instructions may be given, including, when applicable, an express indication that instructions may be given
to the depositary to give a discretionary proxy to a person designated by Teva. |
Upon the written request of
an ADS holder on such record date, received on or before the date established by the depositary for such purpose, the depositary shall endeavor, insofar as is practicable and permitted under applicable law and the provisions of Tevas
memorandum and articles of association, as amended, to vote or cause to be voted the amount of ordinary shares represented by the ADSs in accordance with the instructions set forth in such request. If no instructions are received by the depositary
from a holder of an ADS, the depositary shall give a discretionary proxy for the ordinary shares represented by such holders ADS to a person designated by Teva. The depositary may, to the extent not prohibited by the deposit agreement, law or
regulation or by the requirements of the stock exchange on which the ADSs are listed, in lieu of distribution of the materials provided to the depositary in connection with any meeting of, or solicitation of consents or proxies from, holders of
deposited securities, distribute to the owners a notice that provides owners with instructions on how to retrieve such materials or receive such materials upon request.
Amendment and Termination of the Deposit Agreement
The form of the ADRs
and the terms of the deposit agreement may at any time be amended by written agreement between Teva and the depositary, without the consent of the ADS holders. Any amendment that imposes or increases any fees or charges (other than taxes or other
governmental charges, registration fees, cable, telex or facsimile transmission costs, delivery costs or other such expenses), or that otherwise prejudices any substantial existing right of holders of ADSs shall, however, not become effective until
the expiration of thirty days after notice of such amendment has been given to the holders of outstanding ADSs. Every holder of an ADS at the time such amendment becomes effective will be deemed, by continuing to hold such ADS, to consent and agree
to such amendment and to be bound by the deposit agreement as amended thereby. In no event will any amendment impair the right of any ADS holder to surrender the ADSs held by such holder and receive therefore the underlying ordinary shares and any
other property represented thereby, except in order to comply with mandatory provisions of applicable law. However, if any governmental body or regulatory body should adopt new laws, rules or regulations which would require amendment or supplement
of the deposit agreement or any receipt to ensure compliance therewith, Teva and the depositary may amend or supplement the deposit agreement and the receipts at any time in accordance with such changed laws, rules or regulations. Such amendment or
supplement to the deposit agreement in such circumstances may become effective before a notice of such amendment or supplement is given to owners or within any other period of time as required for compliance.
Whenever so directed by Teva, the depositary has agreed to terminate the deposit agreement by mailing notice of such termination to the
holders of all ADSs then outstanding at least 30 days prior to the date fixed in such notice for such termination. The depositary may likewise terminate the deposit agreement by mailing notice of such termination to Teva and the holders of all ADSs
then outstanding if at any time 60 days shall have expired after the depositary shall have delivered to Teva a written notice of its election to resign and a successor depositary shall not have been appointed and accepted its appointment.
13
If any ADSs remain outstanding after the date of termination, the depositary thereafter will
discontinue the registration of transfers of ADSs, will suspend the distribution of dividends to the holders and will not give any further notices or perform any further acts under the deposit agreement, except:
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the collection of dividends and other distributions; |
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the sale of rights and other property; and |
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the delivery of ordinary shares, together with any dividends or other distributions received with respect thereto and the net proceeds of the sale of
any rights or other property, in exchange for surrendered ADSs, subject to the terms of the deposit agreement. |
At any time after the expiration of one year from the date of termination, the depositary may sell the underlying ordinary shares and hold uninvested the net proceeds, together with any cash then held by
it under the deposit agreement, unsegregated and without liability for interest, for the pro rata benefit of the holders of ADSs that have not theretofore surrendered their ADSs and such holders shall become general creditors of the depositary with
respect to such net proceeds. After making such sale, the depositary shall be discharged from all obligations under the deposit agreement, except to account for net proceeds and other cash (after deducting fees of the depositary) and except for
obligations for indemnification set forth in the deposit agreement. Upon the termination of the deposit agreement, Teva will also be discharged from all obligations thereunder, except for certain obligations to the depositary.
Charges of Depositary
Teva will pay the fees and out-of-pocket expenses of the depositary and those of any registrar only in accordance with agreements in
writing entered into between the depositary and Teva from time to time. The following charges shall be incurred by any party depositing or withdrawing ordinary shares or by any party surrendering ADSs or to whom ADSs are issued (including, without
limitation, issuance pursuant to a stock dividend or stock split declared by Teva or an exchange of stock regarding the ADSs or deposited ordinary shares or a distribution of ADSs pursuant to the terms of the deposit agreement):
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any applicable taxes and other governmental charges; |
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any applicable transfer or registration fees; |
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certain cable, telex and facsimile transmission charges as provided in the deposit agreement; |
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any expenses incurred in the conversion of foreign currency; |
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a fee of $5.00 or less per 100 ADSs (or a portion of such amount of ADSs) for the delivery of ADSs in connection with the deposit of ordinary shares,
distributions in ordinary shares on the surrender of ADSs or the distribution of rights on the ordinary shares; |
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a fee of $0.02 or less per ADS for any cash distributions on the ordinary shares; |
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a fee of $5.00 or less per 100 ADSs (or a portion of such amount of ADSs) for the distribution of securities on the ordinary shares (other than
ordinary shares or rights thereon); and |
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a fee $0.02 or less per ADS annually for depositary services performed by the depositary and/or the custodians (which may be charged directly to the
owners or which may be withheld from cash distributions, at the sole discretion of the depositary). |
The
depositary may own and deal in any class of securities of Teva and its affiliates and in ADSs.
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Transfer of American Depositary Shares
The ADSs are transferable on the books of the depositary, except during any period when the transfer books of the depositary are closed,
or if any such action is deemed necessary or advisable by the depositary or Teva at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any provision of the deposit
agreement. The surrender of outstanding ADSs and withdrawal of deposited ordinary shares may not be suspended subject only to:
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temporary delays caused by closing the transfer books of the depositary or Teva, the deposit of ordinary shares in connection with voting at a
shareholders meeting or the payment of dividends; |
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the payment of fees, taxes and similar charges; and |
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compliance with the U.S. or foreign laws or governmental regulations relating to the ADSs or to the withdrawal of the deposited ordinary shares.
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The depositary shall not knowingly accept for deposit under the deposit agreement any ordinary shares
required to be registered under the provisions of the Securities Act, unless a registration statement is in effect as to such ordinary shares. As a condition to the delivery, registration of transfer, split-up, combination or surrender of any ADS or
withdrawal of ordinary shares, the depositary, the custodian or the registrar may require payment from the person presenting the ADS or the depositor of the ordinary shares of a sum sufficient to reimburse it for any tax or other governmental charge
and any stock transfer or registration fee with respect thereto, payment of any applicable fees payable by the holders of ADSs, may require the production of proof satisfactory to the depositary as to the identity and genuineness of any signature
and may also require compliance with any regulations the depositary may establish consistent with the provisions of the deposit agreement. The depositary may refuse to deliver ADSs, register the transfer of any ADS or make any distribution on, or
related to, ordinary shares until it or the custodian has received proof of citizenship or residence, exchange control approval or other information as it may deem necessary or proper. Holders of ADSs may inspect the transfer books of the depositary
at any reasonable time, provided, that such inspection shall not be for the purpose of communicating with holders of ADSs in the interest of a business or object other than Tevas business or a matter related to the deposit agreement or ADSs.
General
Neither the depositary nor Teva nor any of their directors, employees, agents or affiliates will be liable to the holders of ADSs if by
reason of any present or future law or regulation of the United States or any other country or of any government or regulatory authority or any stock exchange, any provision, present or future, of Tevas memorandum and articles of association,
as amended, or any circumstance beyond its control, the depositary or Teva or any of their respective directors, employees, agents or affiliates is prevented or delayed in performing its obligations or exercising its discretion under the deposit
agreement or is subject to any civil or criminal penalty on account of performing its obligations. The obligations of Teva and the depositary under the deposit agreement are expressly limited to performing their obligations specifically set forth in
the deposit agreement without negligence, bad faith or willful misconduct.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
We or any of the other finance subsidiaries may elect to offer debt securities. The following description of debt securities sets forth
the material terms and provisions of the debt securities to which any prospectus supplement may relate. Our senior debt securities would be issued under a senior indenture, between Teva and The Bank of New York Mellon, as trustee. Tevas
subordinated debt securities would be issued under a subordinated indenture between Teva and The Bank of New York Mellon, as trustee. The senior or subordinated indenture, a form of each of which is included as an exhibit to the registration
statement of which this prospectus is a part, will be executed at the time we issue any debt securities. Any supplemental indentures will be filed with the SEC on a Form 6-K or by a post-effective amendment to the registration statement of which
this prospectus is a part.
The senior debt securities of each finance subsidiary would be issued under a senior indenture
among that entity, Teva, as guarantor, and The Bank of New York Mellon, as trustee. The subordinated debt securities of each finance subsidiary would be issued under a subordinated indenture among that entity, Teva, as guarantor, and The Bank of New
York Mellon, as trustee.
All of the indentures are sometimes referred to in this prospectus collectively as the
indentures and each, individually, as an indenture. All senior indentures are sometimes referred to in this prospectus collectively as the senior indentures and each, individually, as a senior
indenture. All subordinated indentures are sometimes referred to in this prospectus collectively as the subordinated indentures and each, individually, as a subordinated indenture. The particular terms of the debt
securities offered by any prospectus supplement, and the extent to which the general provisions described below may apply to the offered debt securities, will be described in the applicable prospectus supplement. The indentures will be qualified
under the Trust Indenture Act of 1939, as amended. The terms of the debt securities will include those stated in the indentures and those made part of the indentures by reference to the Trust Indenture Act.
Because the following summaries of the material terms and provisions of the indentures and the related debt securities are not complete,
you should refer to the forms of the indentures and the debt securities for complete information on some of the terms and provisions of the indentures, including definitions of some of the terms used below, and the debt securities. The senior
indentures and subordinated indentures are substantially identical to one another, except for specific provisions relating to subordination contained in the subordinated indentures.
General
The provisions of the indentures do not limit the aggregate
principal amount of debt securities which may be issued thereunder. Unless otherwise provided in a prospectus supplement, the senior debt securities will be the issuers direct, unsecured and unsubordinated general obligations and will have the
same rank in liquidation as all of the issuers other unsecured and unsubordinated debt. The subordinated debt securities will be unsecured obligations of the issuer, subordinated in right of payment to the prior payment in full of all senior
indebtedness of the issuer with respect to such series, as described below under Subordination of the Subordinated Debt Securities and in the applicable prospectus supplement.
Payments
The issuer may issue debt securities from time to time in one or
more series. The provisions of the indentures allow the issuer to reopen a previous issue of a series of debt securities and issue additional debt securities of that series, as well as debt securities of other series. The debt securities
may be denominated and payable in U.S. dollars or foreign currencies. The issuer may also issue debt securities from time to time with the principal amount or interest payable on any relevant payment date to be determined by reference to one or more
currency exchange rates, securities or baskets of securities, commodity prices or indices. Holders of these types of debt securities will receive payments of principal or interest that depend upon the value of the applicable currency, security or
basket of securities, commodity or index on the relevant payment dates.
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Debt securities may bear interest at a fixed rate, which may be zero, a floating rate, or a
rate which varies during the lifetime of the debt security. Debt securities bearing no interest or interest at a rate that at the time of issuance is below the prevailing market rate may be sold at a discount below their stated principal amount.
Terms Specified in the Applicable Prospectus Supplement
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to any offered debt securities:
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the specific designation; |
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any limit on the aggregate principal amount of the debt securities, their purchase price and denomination; |
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the currency in which the debt securities are denominated and/or in which principal, premium, if any, and/or interest, if any, is payable;
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the interest rate or rates or the method by which the calculation agent will determine the interest rate or rates, if any;
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the interest payment dates, if any; |
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the place or places for payment of the principal of and any premium and/or interest on the debt securities; |
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any repayment, redemption, prepayment or sinking fund provisions, including any redemption notice provisions; |
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whether we will issue the debt securities in registered form or bearer form or both and, if we are offering debt securities in bearer form, any
restrictions applicable to the exchange of one form for another and to the offer, sale and delivery of those debt securities in bearer form; |
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whether we will issue the debt securities in definitive form and under what terms and conditions; |
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the terms on which holders of the debt securities may convert or exchange these securities into or for ADSs or other of our securities or of an entity
unaffiliated with us, any specific terms relating to the adjustment of the conversion or exchange feature and the period during which the holders may make the conversion or exchange; |
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information as to the methods for determining the amount of principal or interest payable on any date and/or the currencies, securities or baskets of
securities, commodities or indices to which the amount payable on that date is linked; |
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any agents for the debt securities, including trustees, depositaries, authenticating or paying agents, transfer agents or registrars;
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whether and under what circumstances the issuer will pay additional amounts on debt securities for any tax, assessment or governmental charge withheld
or deducted and, if so, whether we will have the option to redeem those debt securities rather than pay the additional amounts; |
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any material Israeli, U.S. federal, and if applicable, Curaçao or Dutch income tax consequences, including, but not limited to:
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tax considerations applicable to any discounted debt securities or to debt securities issued at par that are treated as having been issued at a
discount for United States federal income tax purposes; and |
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tax considerations applicable to any debt securities denominated and payable in foreign currencies; |
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whether certain payments on the debt securities will be guaranteed under a financial insurance guaranty policy and the terms of that guaranty;
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whether the debt securities will be secured; |
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any applicable selling restrictions; and |
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any other specific terms of the debt securities, including any modifications to or additional events of default, covenants or modified or eliminated
acceleration rights, and any terms required by or advisable under applicable laws or regulations, including laws and regulations relating attributes required for the debt securities to be afforded certain capital treatment for bank regulatory or
other purposes. |
Some of the debt securities may be issued as original issue discount securities. Original
issue discount securities bear no interest or bear interest at below-market rates and may be sold at a discount below their stated principal amount. The applicable prospectus supplement will contain information relating to income tax, accounting,
and other special considerations applicable to original issue discount securities.
Registration and Transfer of Debt Securities
Holders may present debt securities for exchange, and holders of registered debt securities may present these securities
for transfer, in the manner, at the places and subject to the restrictions stated in the debt securities and described in the applicable prospectus supplement. The issuer will provide these services without charge except for any tax or other
governmental charge payable in connection with these services and subject to any limitations or requirements provided in the applicable indenture or the supplemental indenture or issuer order under which that series of debt securities is issued.
Holders may transfer debt securities in bearer form and/or the related coupons, if any, by delivery to the transferee. If any of the securities are held in global form, the procedures for transfer of interests in those securities will depend upon
the procedures of the depositary for those global securities.
Events of Default
Each indenture provides holders of debt securities with remedies if the issuer and/or guarantor, as the case may be, fails to perform
specific obligations, such as making payments on the debt securities, or if the issuer and/or guarantor, as the case may be, becomes bankrupt. Holders should review these provisions and understand which actions trigger an event of default and which
actions do not. Each indenture permits the issuance of debt securities in one or more series, and, in many cases, whether an event of default has occurred is determined on a series-by-series basis.
An event of default is defined under the indentures, with respect to any series of debt securities issued under that indenture, as any
one or more of the following events, subject to modification in a supplemental indenture, each of which we refer to in this prospectus as event of default, having occurred and be continuing:
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default is made in the payment of premium or principal in respect of the securities; |
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default is made for more than 30 days in the payment of interest in respect of the securities; |
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the issuer and/or guarantor, as the case may be, fails to perform or observe any of its other obligations under the securities and this failure has
continued for the period of 60 days next following the service on us of notice requiring the same to be remedied; |
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issuers and/or guarantors, as the case may be, bankruptcy, insolvency or reorganization under any applicable bankruptcy, insolvency or
insolvency related reorganization law; |
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an order is made or an effective resolution is passed for the winding up or liquidation of the issuer and/or guarantor, as the case may be; or
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any other event of default provided in the supplemental indenture or issuer order, if any, under which that series of debt securities is issued.
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Acceleration of Debt Securities Upon an Event of Default
Each indenture provides that, unless otherwise set forth in a supplemental indenture:
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if an event of default occurs due to the default in payment of principal of, or any premium or interest on, any series of debt securities issued under
the indenture, or due to the default in the performance or breach of any other covenant or warranty of the issuer and/or guarantor, as the case may be, applicable to that series of debt securities but not applicable to all outstanding debt
securities issued under that indenture occurs and is continuing, either the trustee or the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of each affected series, voting as one class, by notice in
writing to the issuer and guarantor, as the case may be, may declare the principal of and accrued interest on the debt securities of such affected series (but not any other debt securities issued under that indenture) to be due and payable
immediately; |
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if an event of default occurs due to specified events of bankruptcy, insolvency or reorganization of the issuer and/or the guarantor, as the case may
be, the principal of all debt securities and interest accrued on the debt securities to be due and payable immediately; and |
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if an event of default due to a default in the performance of any other of the covenants or agreements in the indenture applicable to all outstanding
debt securities issued under the indenture occurs and is continuing, either the trustee or the holders of not less than 25% in aggregate principal amount of all outstanding debt securities issued under the indenture for which any applicable
supplemental indenture does not prevent acceleration under the relevant circumstances, voting as one class, by notice in writing to the issuer and/or guarantor, as the case may be, may declare the principal of all debt securities and interest
accrued on the debt securities to be due and payable immediately. |
Annulment of Acceleration and Waiver of Defaults
In some circumstances, if any and all events of default under the indenture, other than the non-payment of the principal
of the securities that has become due as a result of an acceleration, have been cured, waived or otherwise remedied, then the holders of a majority in aggregate principal amount of all series of outstanding debt securities affected, voting as one
class, may annul past declarations of acceleration or waive past defaults of the debt securities.
Indemnification of Trustee for Actions
Taken on Your Behalf
Each indenture provides that the trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the direction of the holders of debt securities issued under that indenture 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. In addition, each indenture contains a provision entitling the trustee, subject to the duty of the trustee to act with the required standard of care during a default, to be indemnified to its
reasonable satisfaction by the holders of debt securities issued under the indenture before proceeding to exercise any right or power at the request of holders. Subject to these provisions and specified other limitations, the holders of a majority
in aggregate principal amount of each series of outstanding debt securities of each affected series, voting as one class, may direct the time, method and place of conducting any proceeding for any remedy available to the trustee, or exercising any
trust or power conferred on the trustee.
Limitation on Actions by You as an Individual Holder
Each indenture provides that no individual holder of debt securities may institute any action against us under that indenture, except
actions for payment of overdue principal and interest, unless the following actions have occurred:
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the holder must have previously given written notice to the trustee of the continuing default; |
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the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of each affected series, treated as one class, must
have: |
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requested the trustee to institute that action and |
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offered the trustee reasonable indemnity; |
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the trustee must have failed to institute that action within 60 days after receipt of the request referred to above; and |
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the holders of a majority in principal amount of the outstanding debt securities of each affected series, voting as one class, must not have given
directions to the trustee inconsistent with those of the holders referred to above. |
Each indenture contains
a covenant that the issuer and guarantor, if applicable, will file annually with the trustee a certificate of no default or a certificate specifying any default that exists.
Discharge, Defeasance and Covenant Defeasance
The issuer has the ability
to eliminate most or all of its obligations on any series of debt securities prior to maturity if it complies with the following provisions:
Discharge of Indenture. The issuer may discharge all of its obligations, other than as to transfers and exchanges, under the indenture after it has:
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paid or caused to be paid the principal of and interest on all of the outstanding debt securities in accordance with their terms;
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delivered to the applicable trustee for cancellation all of the outstanding debt securities; or |
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irrevocably deposited with the applicable trustee cash or, in the case of a series of debt securities payable only in U.S. dollars, U.S. government
obligations in trust for the benefit of the holders of any series of debt securities issued under the indenture that have either become due and payable, or are by their terms due and payable, or are scheduled for redemption, within one year, in an
amount certified to be sufficient to pay on each date that they become due and payable, the principal of and interest on, and any mandatory sinking fund payments for, those debt securities. However, the deposit of cash or U.S. government obligations
for the benefit of holders of a series of debt securities that are due and payable, or are scheduled for redemption, within one year will discharge obligations under the applicable indenture relating only to that series of debt securities.
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Defeasance of a Series of Securities at Any Time. The issuer may also discharge all of its
obligations, other than as to transfers and exchanges, under any series of debt securities at any time, which we refer to as defeasance in this prospectus. The issuer may be released with respect to any outstanding series of debt securities from the
obligations imposed by the covenants described above limiting consolidations, mergers, asset sales and leases, and elect not to comply with those sections without creating an event of default. Discharge under those procedures is called covenant
defeasance.
Defeasance or covenant defeasance may be effected only if, among other things:
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the issuer irrevocably deposits with the relevant trustee cash or, in the case of debt securities payable only in U.S. dollars, U.S. government
obligations, as trust funds in an amount certified to be sufficient to pay on each date that they become due and payable, the principal of and interest on, and any mandatory sinking fund payments for, all outstanding debt securities of the series
being defeased; and |
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the issuer delivers to the relevant trustee an opinion of counsel to the effect that: |
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the holders of the series of debt securities being defeased will not recognize income, gain or loss for United States federal income tax purposes as a
result of the defeasance or covenant defeasance; |
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the defeasance or covenant defeasance will not otherwise alter those holders United States federal income tax treatment of principal and interest
payments on the series of debt securities being defeased; and |
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in the case of a defeasance, this opinion must be based on a ruling of the Internal Revenue Service or a change in United States federal income tax law
occurring after the date of this prospectus, since that result would not occur under current tax law. |
Modification of
the Indenture
Modification without Consent of Holders. The issuer and the relevant trustee may enter into
supplemental indentures without the consent of the holders of debt securities issued under each indenture to:
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secure any debt securities; |
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evidence the assumption by a successor corporation of our obligations; |
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add covenants for the protection of the holders of debt securities; |
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cure any ambiguity or correct any inconsistency; |
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establish the forms or terms of debt securities of any series; or |
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evidence the acceptance of appointment by a successor trustee. |
Modification with Consent of Holders. Each issuer and the trustee, with the consent of the holders of not less than a
majority in aggregate principal amount of each affected series of outstanding debt securities, voting as one class, may add any provisions to, or change in any manner or eliminate any of the provisions of, the indenture or modify in any manner the
rights of the holders of those debt securities. However, the issuer and the trustee may not make any of the following changes to any outstanding debt security without the consent of each holder that would be affected by the change:
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extend the final maturity of the security; |
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reduce the principal amount; |
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reduce the rate or extend the time of payment of interest; |
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reduce any amount payable on redemption; |
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change the currency in which the principal, including any amount of original issue discount, premium, or interest on the security is payable;
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modify or amend the provisions for conversion of any currency into another currency; |
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reduce the amount of any original issue discount security payable upon acceleration or provable in bankruptcy; |
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alter the terms on which holders of the debt securities may convert or exchange debt securities for stock or other securities or for other property or
the cash value of the property, other than in accordance with the antidilution provisions or other similar adjustment provisions included in the terms of the debt securities; |
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impair the right of any holder to institute suit for the enforcement of any payment on any debt security when due; or |
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reduce the percentage of debt securities the consent of whose holders is required for modification of the Indenture. |
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Form of Debt Security
Each debt security will be represented either by a certificate issued in definitive form to a particular investor or by one or more global securities representing the entire issuance of securities. Both
certificated securities in definitive form and global securities may be issued either:
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in registered form, where the issuers obligation runs to the holder of the security named on the face of the security or
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in bearer form, where the issuers obligation runs to the bearer of the security. |
Definitive securities name you or your nominee as the owner of the security, other than definitive bearer securities, which name the
bearer as owner, and in order to transfer or exchange these securities or to receive payments other than interest or other interim payments, you or your nominee must physically deliver the securities to the trustee, registrar, paying agent or other
agent, as applicable.
Global securities name a depositary or its nominee as the owner of the debt securities represented by
these global securities, other than global bearer securities, which name the bearer as owner. The depositary maintains a computerized system that will reflect each investors beneficial ownership of the securities through an account maintained
by the investor with its broker/dealer, bank, trust company or other representative, as we explain more fully below.
Global Securities
Registered Global Securities. The issuer may issue the debt securities in the form of one or more fully
registered global securities that will be deposited with a depositary or its nominee identified in the applicable prospectus supplement and registered in the name of that depositary or nominee. In those cases, one or more registered global
securities will be issued in a denomination or aggregate denominations equal to the portion of the aggregate principal or face amount of the securities to be represented by registered global securities. Unless and until it is exchanged in whole for
securities in definitive registered form, a registered global security may not be transferred except as a whole by and among the depositary for the registered global security, the nominees of the depositary or any successors of the depositary or
those nominees. If not described below, any specific terms of the depositary arrangement with respect to any securities to be represented by a registered global security will be described in the prospectus supplement relating to those securities. We
anticipate that the following provisions will apply to all depositary arrangements:
Ownership of beneficial interests in a
registered global security will be limited to persons, called participants, that have accounts with the depositary or persons that may hold interests through participants. Upon the issuance of a registered global security, the depositary will
credit, on its book-entry registration and transfer system, the participants accounts with the respective principal or face amounts of the securities beneficially owned by the participants. Any dealers, underwriters or selling agents
participating in the distribution of the securities will designate the accounts to be credited. Ownership of beneficial interests in a registered global security will be shown on, and the transfer of ownership interests will be effected only
through, records maintained by the depositary, with respect to interests of participants, and on the records of participants, with respect to interests of persons holding through participants. The laws of some states may require that some purchasers
of securities take physical delivery of these securities in definitive form. These laws may impair your ability to own, transfer or pledge beneficial interests in registered global securities. So long as the depositary, or its nominee, is the
registered owner of a registered global security, that depositary or its nominee, as the case may be, will be considered the sole owner or holder of the securities represented by the registered global security for all purposes under the applicable
indenture.
Except as described below, owners of beneficial interests in a registered global security will not be entitled to
have the securities represented by the registered global security registered in their names, will not receive or be entitled to receive physical delivery of the securities in definitive form and will not be considered the owners or
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holders of the securities under the applicable indenture. Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for
that registered global security and, if that person is not a participant, on the procedures of the participant through which the person owns its interest, to exercise any rights of a holder under the applicable indenture. We understand that under
existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the applicable indenture, the
depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take that action, and the participants would authorize beneficial owners owning through them to give or take that
action or would otherwise act upon the instructions of beneficial owners holding through them.
Principal, premium, if any,
and interest payments on debt securities represented by a registered global security registered in the name of a depositary or its nominee will be made to the depositary or its nominee, as the case may be, as the registered owner of the registered
global security. None of the issuer, the guarantor, if applicable, the trustee or any other agent of the issuer, guarantor or agent of the trustee will have any responsibility or liability for any aspect of the records relating to payments made on
account of beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to those beneficial ownership interests. We expect that the depositary for any of the securities
represented by a registered global security, upon receipt of any payment of principal, premium, interest or other distribution of underlying securities or other property to holders on that registered global security, will immediately credit
participants accounts in amounts proportionate to their respective beneficial interests in that registered global security as shown on the records of the depositary. We also expect that payments by participants to owners of beneficial
interests in a registered global security held through participants will be governed by standing customer instructions and customary practices, as is now the case with the securities held for the accounts of customers in bearer form or registered in
street name, and will be the responsibility of those participants.
If the depositary for any of these securities
represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, and a successor depositary registered as a clearing agency under the
Exchange Act is not appointed by the issuer within 90 days, the issuer will issue securities in definitive form in exchange for the registered global security that had been held by the depositary. In addition, the issuer may, at any time and in its
sole discretion, decide not to have any of the securities represented by one or more registered global securities. If the issuer makes that decision, it will issue securities in definitive form in exchange for all of the registered global security
or securities representing those securities. Any securities issued in definitive form in exchange for a registered global security will be registered in the name or names that the depositary gives to the relevant trustee or other relevant agent of
ours or theirs. It is expected that the depositarys instructions will be based upon directions received by the depositary from participants with respect to ownership of beneficial interests in the registered global security that had been held
by the depositary.
Bearer Global Securities. The securities may also be issued in the form of one or more
bearer global securities that will be deposited with a common depositary for the Euroclear System and Clearstream Banking, societe anonyme or with a nominee for the depositary identified in the prospectus supplement relating to those securities. The
specific terms and procedures, including the specific terms of the depositary arrangement, with respect to any securities to be represented by a bearer global security will be described in the prospectus supplement relating to those securities.
Guarantees
Teva will fully and unconditionally guarantee payment in full to the holders of the debt securities issued by the finance subsidiaries
pursuant to this prospectus. The guarantee is set forth in, and forms part of, the finance subsidiary indenture under which the debt securities will be issued. If, for any reason, the issuer does not make any required payment in respect of its debt
securities when due, the guarantor will cause the payment to be made
23
to or to the order of the trustee. The guarantee will be on a senior basis when the guaranteed debt securities are issued under the senior indenture, and on a subordinated basis to the extent the
guaranteed debt securities are issued under the subordinated indenture. The extent to which the guarantee is subordinated to other indebtedness of the guarantor will be substantially the same as the extent to which the subordinated debt issued by
the issuer is subordinated to the other indebtedness of the issuer as described below under Subordination of the Subordinated Debt Securities. The holder of the guaranteed security may sue the guarantor to enforce its rights under
the guarantee without first suing any other person or entity.
Subordination of the Subordinated Debt Securities
Subordinated debt securities issued by an issuer will, to the extent set forth in the applicable subordinated indenture, be subordinate in
right of payment to the prior payment in full of all senior indebtedness of the issuer, whether outstanding at the date of the subordinated indenture or incurred after that date. In the event of:
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any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the issuer or to its creditors, as such, or to its assets; or |
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any voluntary or involuntary liquidation, dissolution or other winding up of the issuer, whether or not involving insolvency or bankruptcy; or
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any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the issuer, |
then the holders of senior indebtedness of the issuer will be entitled to receive payment in full of all amounts due or to become due on or in respect of
all its senior indebtedness, or provision will be made for the payment in cash, before the holders of the subordinated debt securities of the issuer are entitled to receive or retain any payment on account of principal of, or any premium or interest
on, or any additional amounts with respect to, the subordinated debt securities. The holders of senior indebtedness of the issuer will be entitled to receive, for application to the payment of the senior indebtedness, any payment or distribution of
any kind or character, whether in cash, property or securities, including any payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the issuer being subordinated to the payment of its
subordinated debt securities. This payment may be payable or deliverable in respect of its subordinated debt securities in any case, proceeding, dissolution, liquidation or other winding up event.
By reason of subordination, in the event of liquidation or insolvency of the issuer, holders of senior indebtedness of the issuer and
holders of other obligations of the issuer that are not subordinated to its senior indebtedness may recover more ratably than the holders of subordinated debt securities of the issuer.
Subject to the payment in full of all senior indebtedness of the issuer, the rights of the holders of subordinated debt securities of the
issuer will be subrogated to the rights of the holders of its senior indebtedness to receive payments or distributions of cash, property or securities of the issuer applicable to its senior indebtedness until the principal of, any premium and
interest on, and any additional amounts with respect to, its subordinated debt securities have been paid in full.
No payment
of principal, including redemption and sinking fund payments, of, or any premium or interest on, or any additional amounts with respect to the subordinated debt securities of the issuer, or payments to acquire these securities, other than pursuant
to their conversion, may be made:
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if any senior indebtedness of the issuer is not paid when due and any applicable grace period with respect to the default has ended and the default has
not been cured or waived or ceased to exist, or |
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if the maturity of any senior indebtedness of the issuer has been accelerated because of a default. |
The subordinated indentures do not limit or prohibit the issuer from incurring additional senior indebtedness, which may include
indebtedness that is senior to its subordinated debt securities, but subordinate to the issuers other obligations.
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The subordinated indentures provide that these subordination provisions, insofar as they
relate to any particular issue of subordinated debt securities by the issuer, may be changed prior to the issuance. Any change would be described in the applicable prospectus supplement.
New York Law to Govern
The indentures and the debt securities will be
governed by the laws of the State of New York.
Information Concerning the Trustee
The Bank of New York Mellon, as trustee under the indenture, has been appointed by us as paying agent, conversion agent, registrar and
custodian with regard to the debt securities. The trustee or its affiliates may from time to time in the future provide banking and other services to us in the ordinary course of their business.
DESCRIPTION OF PURCHASE CONTRACTS
Teva may issue purchase contracts for the purchase or sale of debt or equity securities issued by Teva or securities of third parties, a
basket of such securities, an index or indices of such securities or any combination of the above as specified in the applicable prospectus supplement.
Each purchase contract will entitle the holder thereof to purchase or sell, and obligate us to sell or purchase, on specified dates, such securities, currencies or commodities at a specified purchase
price, which may be based on a formula, all as set forth in the applicable prospectus supplement. Teva may, however, satisfy its obligations, if any, with respect to any purchase contract by delivering the cash value of such purchase contract or the
cash value of the property otherwise deliverable or, in the case of purchase contracts on underlying currencies, by delivering the underlying currencies, as set forth in the applicable prospectus supplement. The applicable prospectus supplement will
also specify the methods by which the holders may purchase or sell such securities, currencies or commodities and any acceleration, cancellation or termination provisions or other provisions relating to the settlement of a purchase contract.
The purchase contracts may require Teva to make periodic payments to the holders thereof or vice versa, which payments may be
deferred to the extent set forth in the applicable prospectus supplement, and those payments may be unsecured or prefunded on some basis. The purchase contracts may require the holders thereof to secure their obligations in a specified manner to be
described in the applicable prospectus supplement. Alternatively, purchase contracts may require holders to satisfy their obligations thereunder when the purchase contacts are issued. Tevas obligation to settle such pre-paid purchase contacts
on the relevant settlement date may constitute indebtedness. Accordingly, pre-paid purchase contracts will be issued under either the senior indenture or the subordinated indenture.
DESCRIPTION OF UNITS
As specified in the applicable prospectus supplement, Teva may issue units consisting of one or more purchase contracts, warrants, debt securities, ordinary shares, ADSs, other equity securities or any
combination of such securities. The applicable prospectus supplement will describe:
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the terms of the units and of the purchase contracts, warrants, debt securities, ordinary shares, ADSs, and/or other equity securities comprising the
units, including whether and under what circumstances the securities comprising the units may be traded separately; |
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a description of the terms of any unit agreement governing the units; and |
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a description of the provisions for the payment, settlement, transfer or exchange of the units. |
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DESCRIPTION OF WARRANTS
Teva may issue warrants to purchase its debt or equity securities, debt securities of the finance subsidiaries or securities of third
parties or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified securities or indices, or any combination of the foregoing. Warrants may be issued independently or
together with any other securities and may be attached to, or separate from, such securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between Teva and a warrant agent. The terms of any warrants to
be issued and a description of the material provisions of the applicable warrant agreement will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the following terms of any warrants in respect of which this prospectus is being delivered:
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the title of such warrants; |
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the aggregate number of such warrants; |
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the price or prices at which such warrants will be issued; |
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the currency or currencies, in which the price of such warrants will be payable; |
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the securities or other rights, including rights to receive payment in cash or securities based on the value, rate or price of one or more specified
commodities, currencies, securities or indices, or any combination of the foregoing, purchasable upon exercise of such warrants; |
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the date on which the right to exercise such warrants shall commence and the date on which such right shall expire; |
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if applicable, the minimum or maximum amount of such warrants which may be exercised at any one time; |
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if applicable, the designation and terms of the securities with which such warrants are issued and the number of such warrants issued with each such
security; |
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if applicable, the date on and after which such warrants and the related securities will be separately transferable; |
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information with respect to book-entry procedures, if any; |
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any material Israeli, U.S. federal, and if applicable, Curaçao or Dutch income tax consequences; |
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the antidilution provisions of the warrants; and |
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any other terms of such warrants, including terms, procedures and limitations relating to the exchange and exercise of such warrants.
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TAXATION
The material Israeli, U.S. federal, and if applicable, Curaçao or Dutch income tax consequences relating to the purchase,
ownership and disposition of any of the securities offered by this prospectus will be set forth in the prospectus supplement offering those securities.
PLAN OF DISTRIBUTION
We may sell our
securities in any one or more of the following ways from time to time:
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to or through underwriters; |
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directly to purchasers, including our affiliates. |
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The prospectus supplement with respect to any offering of our securities will set forth the
terms of the offering, including:
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the name or names of any underwriters, dealers or agents; |
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the purchase price of the securities and the proceeds to us from the sale; |
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any underwriting discounts and commissions or agency fees and other items constituting underwriters or agents compensation; and
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any delayed delivery arrangements. |
The distribution of the securities may be effected from time to time in one or more transactions at a fixed price or prices, which may be changed, at market prices prevailing at the time of sale, at
prices related to the prevailing market prices or at negotiated prices.
If securities are sold by means of an underwritten
offering, we will execute an underwriting agreement with an underwriter or underwriters, and the names of the specific managing underwriter or underwriters, as well as any other underwriters, and the terms of the transaction, including commissions,
discounts and any other compensation of the underwriters and dealers, if any, will be set forth in the prospectus supplement which will be used by the underwriters to sell the securities. If underwriters are utilized in the sale of the securities,
the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at fixed public offering prices or at varying prices determined by the
underwriters at the time of sale.
Our securities may be offered to the public either through underwriting syndicates
represented by managing underwriters or directly by the managing underwriters. If any underwriter or underwriters are utilized in the sale of the securities, unless otherwise indicated in the prospectus supplement, the underwriting agreement will
provide that the obligations of the underwriters are subject to conditions precedent and that the underwriters with respect to a sale of securities will be obligated to purchase all of those securities if they purchase any of those securities.
We may grant to the underwriters options to purchase additional securities to cover over-allotments, if any, at the public
offering price with additional underwriting discounts or commissions. If we grant any over-allotment option, the terms of any over-allotment option will be set forth in the prospectus supplement relating to those securities.
If a dealer is utilized in the sales of securities in respect of which this prospectus is delivered, we will sell those securities to the
dealer as principal. The dealer may then resell those securities to the public at varying prices to be determined by the dealer at the time of resale. Any reselling dealer may be deemed to be an underwriter, as the term is defined in the Securities
Act of 1933, of the securities so offered and sold. The name of the dealer and the terms of the transaction will be set forth in the related prospectus supplement.
Offers to purchase securities may be solicited by agents designated by us from time to time. Any agent involved in the offer or sale of the securities in respect of which this prospectus is delivered will
be named, and any commissions payable by us to the agent will be set forth, in the applicable prospectus supplement. Unless otherwise indicated in the prospectus supplement, any agent will be acting on a reasonable best efforts basis for the period
of its appointment. Any agent may be deemed to be an underwriter, as that term is defined in the Securities Act of 1933, of the securities so offered and sold.
Offers to purchase securities may be solicited directly by us and the sale of those securities may be made by us directly to institutional investors or others, who may be deemed to be underwriters within
the meaning of the Securities Act of 1933 with respect to any resale of those securities. The terms of any sales of this type will be described in the related prospectus supplement.
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Underwriters, dealers, agents and remarketing firms may be entitled under relevant
agreements entered into with us to indemnification by us against certain civil liabilities, including liabilities under the Securities Act of 1933, that may arise from any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state a material fact in this prospectus, any supplement or amendment hereto, or in the registration statement of which this prospectus forms a part, or to contribution with respect to payments which the agents,
underwriters or dealers may be required to make.
If so indicated in the prospectus supplement, we will authorize underwriters
or other persons acting as our agents to solicit offers by institutions to purchase securities from us pursuant to contracts providing for payments and delivery on a future date. Institutions with which contracts of this type may be made include
commercial and savings banks, insurance companies, pension funds, investment companies, educational and charitable institutions and others, but in all cases those institutions must be approved by us. The obligations of any purchaser under any
contract of this type will be subject to the condition that the purchase of the securities shall not at the time of delivery be prohibited under the laws of the jurisdiction to which the purchaser is subject. The underwriters and other persons
acting as our agents will not have any responsibility in respect of the validity or performance of those contracts.
One or
more firms, referred to as remarketing firms, may also offer or sell the securities, if the prospectus supplement so indicates, in connection with a remarketing arrangement upon their purchase. Remarketing firms will act as principals
for their own accounts or as agents for Teva or any of its subsidiaries. These remarketing firms will offer or sell the securities in accordance with a redemption or repayment pursuant to the terms of the securities. The prospectus supplement will
identify any remarketing firm and the terms of its agreement, if any, with Teva or any of its subsidiaries and will describe the remarketing firms compensation. Remarketing firms may be deemed to be underwriters in connection with the
securities they remarket. Remarketing firms may be entitled under agreements that may be entered into with Teva or any of its subsidiaries to indemnification by Teva or any of its subsidiaries against certain civil liabilities, including liabilities
under the Securities Act, and may engage in transactions with or perform services for Teva or any of its subsidiaries in the ordinary course of business.
Disclosure in the prospectus supplement of our use of delayed delivery contracts will include the commission that underwriters and agents soliciting purchases of the securities under delayed contracts
will be entitled to receive in addition to the date when we will demand payment and delivery of the securities under the delayed delivery contracts. These delayed delivery contracts will be subject only to the conditions that we describe in the
prospectus supplement.
In connection with the offering of securities, persons participating in the offering, such as any
underwriters, may purchase and sell securities in the open market. These transactions may include over-allotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. Stabilizing
transactions consist of bids or purchases for the purpose of preventing or retarding a decline in the market price of the securities, and syndicate short positions involve the sale by underwriters of a greater number of securities than they are
required to purchase from any issuer in the offering. Underwriters also may impose a penalty bid, whereby selling concessions allowed to syndicate members or other broker-dealers in respect of the securities sold in the offering for their account
may be reclaimed by the syndicate if the securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than
the price that might prevail in the open market, and these activities, if commenced, may be discontinued at any time.
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EXPERTS
The financial statements, financial statement schedule and managements assessment of the effectiveness of internal control over
financial reporting (which is included in Report of Teva Management on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 20-F of Teva Pharmaceutical Industries Limited for the
year ended December 31, 2014, have been so incorporated in reliance on the reports of Kesselman and Kesselman, an independent registered public accounting firm in Israel and a member of PricewaterhouseCoopers International Limited, given on the
authority of said firm as experts in auditing and accounting.
LEGAL MATTERS
Certain legal matters with respect to United States and New York law with respect to the validity of certain of the offered securities
will be passed upon for the issuers by Willkie Farr & Gallagher LLP, New York, New York. Certain legal matters with respect to Israeli law with respect to the validity of certain of the offered securities will be passed upon for the
issuers by Tulchinsky Stern Marciano Cohen Levitski & Co., Israel. Certain legal matters with respect to Curaçao law will be passed upon for the issuers by VanEps Kunneman VanDoorne, Curaçao. Certain legal matters with
respect to Dutch law will be passed upon for the issuers by Van Doorne N.V., Netherlands. Any underwriters will be advised about other issues relating to any offering by their own counsel.
WHERE YOU CAN FIND MORE INFORMATION
Available Information
This prospectus is part of a registration
statement that we filed with the SEC. The registration statement, including the attached exhibits, contains additional relevant information about us. The rules and regulations of the SEC allow us to omit some of the information included in the
registration statement from this prospectus. In addition, we file annual and special reports and other information with the SEC. You may read and copy such material at the public reference facilities maintained by the SEC at 100 F Street, N.E., Room
1580, Washington, D.C. 20549, as well as at the SECs regional offices. You may also obtain copies of such material from the SEC at prescribed rates by writing to the Public Reference Section of the SEC, 100 F Street, N.E., Room 1580,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the public reference rooms.
The SEC
maintains an Internet website at http://www.sec.gov that contains reports, proxies, information statements and other material that are filed through the SECs Electronic Data Gathering, Analysis and Retrieval (EDGAR) system and filed
electronically with the SEC. We began filing through the EDGAR system beginning on October 31, 2002.
Information about
us is also available on our website at http://www.tevapharm.com. Such information on our website is not part of this prospectus.
Incorporation by Reference
The rules of the SEC allow us to incorporate by reference information into this prospectus. The information incorporated by reference is considered to be a part of this prospectus, and information that we
file later with the SEC will automatically update and supersede this information.
The following documents filed with the SEC
are incorporated into this prospectus by reference:
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(1) |
Our Annual Report on Form 20-F for the year ended December 31, 2014; |
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Our Reports of Foreign Private Issuer on Form 6-K, filed with the SEC on January 7, 2015, January 20, 2015, January 26, 2015, and February 5, 2015
(filed at 8:25:50 am EST); and |
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The description of Tevas ordinary shares, par value NIS 0.10 per share and the American Depositary Shares representing the ordinary shares, contained in the
registration statement on Form F-4, as amended on October 14, 2008 (Registration Statement No. 333-153497). |
All reports and other documents filed by Teva pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 (the Exchange Act) subsequent to the date hereof and prior
to the filing of a post-effective amendment which indicates that all the securities offered hereby have been sold or which deregisters all securities then remaining unsold, shall be deemed to be incorporated by reference in this prospectus and to be
part of this prospectus from the date of filing of such reports and documents.
Any statement contained in a document
incorporated or deemed to be incorporated by reference shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained in this prospectus or in any other subsequently filed document
which is incorporated or deemed to be incorporated by reference modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration
statement.
You may also obtain copies of these documents free of charge through our website at http://www.tevapharm.com or by
contacting us at our address or telephone number set forth below. Other than the documents incorporated by reference herein as specified above, the documents and other information on our website are not incorporated by reference herein.
Teva Pharmaceutical Industries Limited
Investor Relations
5 Basel Street
P.O. Box 3190
Petach Tikva 4951033 Israel
972-3-926-7267
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ENFORCEMENT OF CIVIL LIABILITIES
Teva Pharmaceutical Industries Limited
Teva is organized under the laws of Israel and most of Tevas directors and officers reside outside of the United States. As a result, service of process on them may be difficult to effect in the
United States. Furthermore, because a substantial portion of Tevas assets are located in Israel, any judgment obtained in the United States against us or any of our directors and officers may not be collectible within the United States.
Subject to various time limitations, an Israeli court may declare a judgment rendered by a foreign court in a civil matter,
including judgments awarding monetary or other damages in non civil matters, enforceable if it finds that:
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the judgment was rendered by a court which was, according to the foreign countrys law, competent to render it; |
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the judgment is no longer appealable; |
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the obligation in the judgment is enforceable according to the rules relating to the enforceability of judgments in Israel and the substance of the judgment is not
contrary to public policy in Israel; and |
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the judgment can be executed in the state in which it was given. |
A foreign judgment will not be declared enforceable by Israeli courts if it was given in a state, the laws of which do not provide for the enforcement of judgments of Israeli courts (subject to
exceptional cases) or if its enforcement is likely to prejudice the sovereignty or security of Israel. An Israeli court also will not declare a foreign judgment enforceable if it is proven to the Israeli court that:
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the judgment was obtained by fraud; |
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there was no due process; |
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the judgment was given by a court not competent to render it according to the laws of private international law in Israel; |
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(4) |
the judgment conflicts with another judgment that was given in the same matter between the same parties and which is still valid; or |
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at the time the action was brought to the foreign court a claim in the same matter and between the same parties was pending before a court or tribunal in Israel.
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Teva Finance Company BV, Teva Finance IV BV, Teva Finance V BV, Teva Finance NV and Teva Finance Netherlands
Each of the BVs is organized under the laws of Curaçao and Teva Finance Netherlands is organized under the laws
of the Netherlands, and its managing directors and supervisory directors reside outside the United States, and all or a significant portion of the assets of such person may be, and substantially all of the assets of each of the BVs and Teva Finance
Netherlands are, located outside the United States. As a result, it may not be possible to effect service of process within the United States upon any of the BVs or Teva Finance Netherlands or any such person or to enforce against any of the BVs or
Teva Finance Netherlands or any such person judgments obtained in United States courts predicated upon the civil liability provisions of the federal securities laws of the United States.
The United States and Curaçao and the United States and the Netherlands do not currently have a treaty providing for reciprocal
recognition and enforcement of judgments in civil and commercial matters. Therefore, a final judgment for the payment of money rendered by any federal or state court in the United States based on civil liability, whether or not predicated solely
upon the federal securities laws of the United States, would not be directly enforceable in Curaçao or the Netherlands.
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If the party in whose favor such a final judgment is rendered brings a new suit in a
competent court in Curaçao or the Netherlands, that party may submit to the Curaçao or Dutch court the final judgment that has been rendered in the United States.
A foreign judgment would be enforceable in Curaçao generally, without any re-examination of the merits of the original judgment
provided that:
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the judgment is final in the jurisdiction where rendered and was issued by a competent court; |
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the judgment is valid in the jurisdiction where rendered; |
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the judgment was issued following personal service of the summons upon the defendant or its agent and, in accordance with due process of law, an opportunity for the
defendant to defend against the foreign action; |
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the judgment does not violate natural justice or any compulsory provisions of Curaçao law, or principles of public policy; |
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the terms and conditions governing the indentures do not violate any compulsory provisions of Curaçao law, or principles of public policy;
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the judgment is not contrary to a prior or simultaneous judgment of a competent Curaçao court; and |
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the judgment has not been rendered in proceedings of a penal, revenue or other public law nature. |
A Dutch court will generally grant the same judgment without re-litigation on the merits if:
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that judgment results from legal proceedings compatible with Dutch notions of due process; |
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that judgment does not contravene public policy of the Netherlands; and |
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the jurisdiction of the relevant federal or state court in the United States has been based on internationally accepted principles of international civil law.
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Subject to the foregoing and provided that service of process occurs in accordance with applicable treaties,
investors should be able to enforce in the Netherlands final judgments in civil and commercial matters obtained from U.S. federal or state courts. However, it is doubtful whether a Dutch court would accept jurisdiction and impose civil liability in
an original action commenced in the Netherlands and predicated solely upon U.S. securities laws.
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PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 8. |
INDEMNIFICATION OF OFFICERS AND DIRECTORS |
Teva Pharmaceutical Industries Limited
The Companies Law provides that a company may not exempt or indemnify a director or an executive officer, or enter into an insurance contract, which would provide coverage for any liability incurred as a
result of any of the following: (i) a breach by the director and/or executive officer of his or her duty of loyalty unless, with respect to insurance coverage or indemnification, due to a breach of his or her duty of loyalty to the company
committed in good faith and with reasonable grounds to believe that such act would not prejudice the interests of the company; (ii) a breach by the director and/or the executive officer of his or her duty of care to the company committed
intentionally or recklessly; (iii) any act or omission done with the intent of unlawfully realizing personal gain; or (iv) a fine, monetary sanction, forfeit or penalty imposed upon a director and/or executive officer. In addition, the
Companies Law provides that directors and executive officers can only be exempted in advance with respect to liability for damages caused as a result of a breach of their duty of care to the company (but not for such breaches committed intentionally
or recklessly, as noted above, or in connection with a distribution (as defined in the Companies Law)).
Tevas articles
of association include provisions under which directors and executive officers of Teva are or may be insured or indemnified against liability which they may incur in their capacities as such, subject to the Companies Law. Articles 102 through 105 of
Tevas articles of association provide as follows:
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Subject to the provisions of applicable law, the Company shall be entitled to engage in a contract for insurance of the liability of any Officer of the Company, in
whole or in part, in respect of any liability or expense imposed on an Officer or expended by him or her as a result of any action which was performed by said Officer in his or her capacity as an Officer of the Company for which insurance may be
provided under applicable law, including in respect of any liability imposed on any Officer with respect to any of the following: |
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Breach of a duty of care vis-à-vis the Company or vis-à-vis another person; |
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(b) |
Breach of a duty of loyalty vis-à-vis the Company, provided that the Officer acted in good faith and had reasonable grounds to believe that the action in
question would not adversely affect the Company; |
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(c) |
Financial liability which shall be imposed upon said Officer in favor of another person as a result of any action which was performed by said Officer in his or her
capacity as an Officer of the Company; including |
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(c1) |
A payment which said Officer is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Securities Law and expenses that said Officer
incurred in connection with a proceeding under Chapters H3, H4 or I1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees, or in connection with Article D of Chapter Four of Part Nine of the
Companies Law. |
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103. |
Subject to the provisions of applicable law, the Company shall be entitled to indemnify post factum and/or undertake in advance to indemnify any Officer of the
Company, as a result of any liability or an expense imposed on him or her or expended by him or her as a result of any action which was performed by said Officer in his or her capacity as an Officer of the Company, in respect of any liability or
expense for which indemnification may be provided under applicable law, including in respect of any liability or an expense imposed on the Officer as follows: |
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(a) |
Financial liability imposed upon said Officer in favor of another person by virtue of a decision by a court of law, including a decision by way of
settlement or a decision in arbitration which has been confirmed by a court of law, provided that the undertaking to indemnify in advance shall be limited to events which, in the opinion of the Board of Directors of the Company, are foreseeable, in
light of the Companys activities at the time that the undertaking to indemnify was given, and |
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shall further be limited to amounts or criteria that the Board of Directors has determined to be reasonable under the circumstances, and provided further that in the undertaking to indemnify in
advance the events that the Board of Directors believes to be foreseeable in light of the Companys activities at the time that the undertaking to indemnify was given are mentioned, as is the amount or criteria that the Board of Directors
determined to be reasonable under the relevant circumstances, including |
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(a1) |
A payment which said Officer is obligated to make to an injured party as set forth in Section 52(54)(a)(1)(a) of the Securities Law and expenses that said Officer
incurred in connection with a proceeding under Chapters H3, H4 or I1 of the Securities Law, including reasonable legal expenses, which term includes attorney fees, or in connection with Article D of Chapter Four of Part Nine of the
Companies Law. |
|
(b) |
Reasonable litigation expenses, including attorney fees, expended by the Officer as a result of an inquiry or a proceeding conducted in respect of such Officer by an
authority authorized to conduct same, which was concluded without the submission of an indictment against said Officer and without any financial penalty being imposed on said Officer instead of a criminal proceeding (as such term is defined in the
Companies Law), or which was concluded without the submission of an indictment against said Officer with a financial penalty being imposed on said Officer instead of a criminal proceeding, in respect of a criminal charge which does not require proof
of criminal intent or in connection with a financial sanction. |
|
(c) |
Reasonable litigation expenses, including attorney fees, which said Officer shall have expended or shall have been obligated to expend by a court of law, in any
proceedings which shall have been filed against said Officer by or on behalf of the Company or by another person, or with regard to any criminal charge of which said Officer was acquitted, or with regard to any criminal charge of which said Officer
was convicted which does not require proof of criminal intent. |
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104. |
Subject to the provisions of applicable law, the Company shall be entitled, in advance, to exempt any Officer of the Company from liability, in whole or in part, with
regard to damage incurred as a result of the breach of duty of care vis-à-vis the Company. |
|
105. |
Notwithstanding the foregoing, the Company shall be entitled to insure, indemnify and exempt from liability any Officer of the Company to the fullest extent permitted
by applicable law. Accordingly, (i) any amendment to the Companies Law, the Securities Law or any other applicable law expanding the right of any Officer to be insured, indemnified or exempted from liability in comparison to the provisions of
these Articles shall, to the extent permitted by applicable law, immediately apply to the fullest extent permitted by applicable law, and (ii) any amendment to the Companies Law, the Securities Law or any other applicable law adversely
affecting the right of any Officer to be insured, indemnified or exempted from liability in comparison to the provision of these Articles shall not be in effect post factum and shall not affect the Companys obligation or ability to
insure, indemnify or exempt from liability an Officer for any act or omission occurring prior to such amendment, unless otherwise provided by applicable law. |
Pursuant to indemnification and release agreements, Teva releases its directors and executive officers from liability and indemnifies them to the fullest extent permitted by law and its articles of
association. Under these agreements, Teva undertakes to indemnify each director and executive officer for monetary liabilities imposed by a court judgment (including a settlement or an arbitrators award that were approved by a court), provided
that such undertaking (i) shall be limited to matters that are connected or otherwise related to certain events or circumstances set forth therein, and (ii) shall not exceed $200 million in the aggregate per director or executive officer.
Under Israeli law, indemnification is subject to other limitations, including those described above. Subject to applicable law, Teva may also indemnify its directors and officers following specific events.
Tevas directors and executive officers are also covered by directors and officers liability insurance.
II-2
Teva Pharmaceutical Finance IV, LLC, Teva Pharmaceutical Finance V, LLC and Teva Pharmaceutical
Finance VI, LLC
Section 18-108 of the Delaware Limited Liability Company Act provides that subject to such
standards and restrictions, if any, as are set forth in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and
all claims and demands whatsoever.
Section 3.3 of the operating agreement of each of the LLCs provides as follows
(with the references therein to the Company referring to the applicable LLC):
Any Person made, or threatened to be
made, a party to any action or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that such Person is or was (i) a Member, or (ii) an employee, officer, director, manager, shareholder or partner of
a Member, or (iii) a Manager, or (iv) such other Persons (including employees of the Company) as the Majority in Interest of the Members may designate from time to time, in their sole and absolute discretion (collectively, the
Indemnified Persons), shall be indemnified by the Company for any losses or damage sustained with respect to such action or proceeding, and the Company shall advance such Indemnified Persons reasonable related expenses to the
fullest extent permitted by law. The Company shall have the power to purchase and maintain insurance on behalf of the Indemnified Persons against any liability asserted against or incurred by them. The duty of the Company to indemnify the
Indemnified Persons under this Section 3.3 shall not extend to actions or omissions of any Indemnified Person which are grossly negligent or which involve fraud, misrepresentation, bad faith, or other willful misconduct by such Indemnified
Person or which are in material breach or violation by such Indemnified Person of this Agreement or which are in derogation of the fiduciary duties owed by such Indemnified Person to the Company and the Members, in each case as determined by a court
of competent jurisdiction. No Indemnified Person shall be liable to the Company or any other Member for actions taken in good faith. The duty of the Company to indemnify the Indemnified Persons under this Section 3.3 shall be limited to the
assets of the Company, and no recourse shall be available against any Member for satisfaction of such indemnification obligations of the Company.
Teva Pharmaceutical Finance Company B.V., Teva Pharmaceutical Finance IV B.V., Teva Pharmaceutical Finance V B.V. and Teva Pharmaceutical Finance N.V.
Under the laws of Curaçao, indemnification by a company of its officers and directors for liability incurred in their capacity as
such is not permitted where the liability results from the gross negligence or willful malfeasance of the officers or directors.
Article 13 of the articles of incorporation of each of the BVs (other than Teva Finance Company BV and Teva Finance NV) provides as follows (with the references therein to the Company
referring to the applicable BV):
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1. |
The Company shall indemnify to the fullest extent permitted under the laws of Curaçao or any other applicable law any person who was or is a
party or is threatened to be made a party to any threatened, pending or contemplated claims, actions, suits or proceedings by reason of the fact that he is or was a Supervisory Director, Managing Director, officer, employee or agent, other service
provider, manager or advisor of the Company, or was serving at the request of the Company as a Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor of another Company, partnership, joint
venture, trust or other enterprise against any and all losses, judgments, fines, amounts paid in settlements and expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such
claim, action, suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company and except that no indemnification shall be made in respect of any claim, action, suit or
proceeding as to which such person shall have been adjudged to be liable for gross negligence or willful misconduct or that such person did not act in good faith and could not reasonably have presumed that his actions were in the best interests of
the Company in the performance of his duty |
II-3
|
to the Company unless, and only to the extent that a court of competent jurisdiction in Curaçao or the court in which such action or suit was brought shall determine in view of all the
circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. |
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2. |
To the extent that a Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor of the Company has been successful on
the merits or otherwise in defense of any action, suit or proceedings of the kind referred to in paragraph 1 of this Article 13, or in defense of any claim, issue or matter related thereto, he shall be indemnified against expenses (including
attorneys fees) actually and reasonably incurred by him in connection therewith. |
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3. |
Any indemnification (unless ordered by a court of competent jurisdiction) shall be made by the Company only as authorized in the specific case upon a determination that
indemnification of the Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor is proper in the circumstances because he has met the applicable standard of conduct set forth in this Article 13.
Such determination shall be made (i) by the Supervisory Board, provided the relevant Supervisory Director seeking indemnification is not a party to such action, suit or proceedings, (ii) if the sole Supervisory Director or all the
Supervisory Directors in office are a party to such action, suit or proceedings, by independent legal counsel in a written opinion, or (iii) by resolution adopted at a General Meeting of Shareholders. |
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4. |
Expenses incurred in defending any such suit or proceedings may be paid by the Company in advance of the final disposition of such action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor to repay such amount if it shall ultimately be determined that he is not entitled to be
indemnified. |
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5. |
The indemnification provided by this Article 13 shall not be deemed exclusive of any other right to which those indemnified may be entitled under any agreement, vote of
Shareholders or disinterested Supervisory Director or otherwise, both as to action in his official capacity while holding such office, and shall continue as to a person who has ceased to be a Supervisory Director, Managing Director, officer,
employee, agent, other service provider, manager or advisor. The indemnification shall inure to the benefit of the heirs, executors and administrators or successors in interest of those persons indemnified. |
Article 30 of the articles of association of Teva Finance Company BV provides as follows:
|
1. |
The Company shall indemnify to the fullest extent permitted under the laws of Curaçao or any other applicable law any person who was or is a party or is
threatened to be made a party to any threatened, pending or contemplated claims, actions, suits or proceedings by reason of the fact that he is or was a Supervisory Director, Managing Director, officer, employee or agent, other service provider,
manager or advisor of the Company, or was serving at the request of the Company as a Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor of another Company, partnership, joint venture, trust
or other enterprise against any and all losses, judgments, fines, amounts paid in settlements and expenses (including attorneys fees) actually and reasonably incurred by him in connection with the defense or settlement of such claim, action,
suit or proceeding if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interest of the Company and except that no indemnification shall be made in respect of any claim, action, suit or proceeding as
to which such person shall have been adjudged to be liable for gross negligence or willful misconduct or that such person did not act in good faith and could not reasonably have presumed that his actions were in the best interests of the Company in
the performance of his duty to the Company unless, and only to the extent that a court of competent jurisdiction in Curaçao or the court in which such action or suit was brought shall determine in view of all the circumstances of the case,
such person is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper. |
II-4
|
2. |
To the extent that a Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor of the Company has been successful on
the merits or otherwise in defense of any action, suit or proceedings of the kind referred to in paragraph 1 of this Article 30, or in defense of any claim, issue or matter related thereto, he shall be indemnified against expenses (including
attorneys fees) actually and reasonably incurred by him in connection therewith. |
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3. |
Any indemnification (unless ordered by a court of competent jurisdiction) shall be made by the Company only as authorized in the specific case upon a determination that
indemnification of the Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor is proper in the circumstances because he has met the applicable standard of conduct set forth in this Article 30.
Such determination shall be made (i) by the Supervisory Board, provided the relevant Supervisory Director seeking indemnification is not a party to such action, suit or proceedings, (ii) if the sole Supervisory Director or all the
Supervisory Directors in office are a party to such action, suit or proceedings, by independent legal counsel in a written opinion, or (iii) by resolution adopted at a General Meeting of Shareholders. |
|
4. |
Expenses incurred in defending any such suit or proceedings may be paid by the Company in advance of the final disposition of such action, suit or proceeding, upon
receipt of an undertaking by or on behalf of the Supervisory Director, Managing Director, officer, employee, agent, other service provider, manager or advisor to repay such amount if it shall ultimately be determined that he is not entitled to be
indemnified. |
|
5. |
The indemnification provided by this Article 30 shall not be deemed exclusive of any other right to which those indemnified may be entitled under any agreement, vote of
Shareholders or disinterested Supervisory Director or otherwise, both as to action in his official capacity while holding such office, and shall continue as to a person who has ceased to be a Supervisory Director, Managing Director, officer,
employee, agent, other service provider, manager or advisor. The indemnification shall inure to the benefit of the heirs, executors and administrators or successors in interest of those persons indemnified. |
The articles of incorporation of Teva Finance NV do not contain such indemnification provisions.
Teva Pharmaceutical Finance Netherlands II B.V.
Under the laws of the Netherlands, indemnification by a company of its officers and directors for liability incurred in their capacity as such is not permitted where the liability results from the gross
negligence or willful malfeasance of the officers or directors. Subject to the foregoing, the general meeting of shareholders of Teva Finance Netherlands can grant an indemnity or an annual discharge to a managing director of Teva Finance
Netherlands. As for the indemnity, article 16(3) of the articles of association of Teva Finance Netherlands provides that the remuneration and the other employment conditions of each managing director are determined by the general
meeting. As for the annual discharge, the relevant clauses of Article 21 of the articles of association of Teva Finance Netherlands provide as follows:
|
1. |
The general meeting adopts the financial statements. The management board adopts the annual report. |
|
2. |
Adoption of the financial statements does not discharge a managing director, unless the provisions of paragraph 3 apply. By separate resolution the general meeting can
discharge a managing director for the management conducted in the financial year in question, insofar as that management is apparent from the financial statements or has been made known to the general meeting. |
|
3. |
If all the shareholders are also managing directors of the Company, signing of the financial statements by all the managing directors also serves as adoption of the
financial statements, provided that all the parties entitled to attend meetings have been given the opportunity to take note of the drafted financial statements and have agreed to this manner of adoption. Adoption of the financial statements in this
manner discharges the managing directors. |
The exhibits
listed below in the Exhibit Index are part of this Registration Statement and are numbered in accordance with Item 601 of Regulation S-K.
II-5
(a) The
undersigned registrants hereby undertake:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or any 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 SEC 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 periodic reports filed with or furnished to the SEC by the registrants pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective
amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) To file a post-effective amendment to the Registration
Statement to include any financial statements required by Item 8.A of Form 20-F at the start of any delayed offering or throughout a continuous offering. Financial statements and information otherwise required by Section 10(a)(3) of the
Act need not be furnished, provided that the registrants include in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (a)(4) and other information necessary to ensure that all other
information in the prospectus is at least as current as the date of those financial statements. Notwithstanding the foregoing, with respect to registration statements on Form F-3, a post-effective amendment need not be filed to include financial
statements and information required by Section 10(a)(3) of the Act or Rule 3-19 of Regulation S-K if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrants pursuant
to Section 13 or Section 15(d) of the Securities Act of 1934 that are incorporated by reference in this Form F-3.
(5) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) If the registrants are relying on Rule 430B:
(A) Each
prospectus filed by the registrants 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
(B) 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
II-6
the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the
date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new
effective date of the registration statement relating to the securities in the registration statement to which 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; or
(ii) If the registrants
are subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A,
shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration
statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first
use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.
(6) That, for the purpose of determining liability of the registrants under the Securities Act of 1933 to any purchaser in
the initial distribution of the securities:
(a) The undersigned registrants undertake that in a primary offering of securities
of the undersigned registrants pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned registrants 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 registrants 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 registrants or used
or referred to by the undersigned registrants;
(iii) The portion of any other free writing prospectus
relating to the offering containing material information about the undersigned registrants or its securities provided by or on behalf of the undersigned registrants; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrants to the purchaser.
(b) The undersigned registrants hereby undertake that, for purposes of determining any liability under the Securities Act of
1933, each filing of any registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrants pursuant to the foregoing provisions, the registrants have been advised that in the opinion of the Securities and Exchange Commission such indemnification is against
II-7
public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrants of
expenses incurred or paid by a director, officer or controlling person of the registrants in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities
being registered, the registrants 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 Act will be governed by the final adjudication of such issue.
(d) The undersigned registrants hereby
undertake to file an application for the purpose of determining the eligibility of the trustee to act under Subsection (a) of Section 310 of the Trust Indenture Act in accordance with the rules and regulations prescribed by the SEC under
Section 305(b)(2) of the Trust Indenture Act.
II-8
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Petach Tikva, Israel, on February 9, 2015.
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED |
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By: |
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/s/ Erez Vigodman |
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Erez Vigodman |
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President and Chief Executive Officer |
POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENT, that each of the undersigned directors and/or officers of Teva Pharmaceutical Industries Limited, a corporation organized under the laws of Israel, hereby constitutes
and appoints Erez Vigodman, Eyal Desheh, Richard S. Egosi and Deborah Griffin, and each of them, his or her true and lawful attorneys-in-fact and agents, with full power of substitution, for him or her and in his or her name, place and stead, in any
and all capacities, to sign, execute and deliver with the U.S. Securities and Exchange Commission under the U.S. Securities Act of 1933 (i) any and all pre-effective and post-effective amendments to this registration statement on Form F-3,
(ii) any registration statement relating to this offering that is to be effective upon filing pursuant to Rule 462(b) under the Securities Act of 1933, (iii) any exhibits to any such registration statement or pre-effective or
post-effective amendments or (iv) any and all applications and other documents in connection with any such registration statement or pre-effective or post-effective amendments, and generally to do all things and perform any and all acts and
things whatsoever requisite and necessary or desirable to enable Teva Pharmaceutical Industries Limited and the other registrants to comply with the provisions of the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been
signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ Yitzhak Peterburg
Yitzhak Peterburg |
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Chairman |
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February 9, 2015 |
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/s/ Erez Vigodman
Erez Vigodman |
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President, Chief Executive Officer and Director |
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February 9, 2015 |
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/s/ Eyal Desheh
Eyal Desheh |
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Chief Financial Officer (Principal Financial Officer) |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) |
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February 9, 2015 |
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/s/ Roger Abravanel
Roger Abravanel |
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Director |
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February 9, 2015 |
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/s/ Sol J. Barer
Sol J. Barer |
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Director |
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February 9, 2015 |
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/s/ Arie Belldegrun
Arie Belldegrun |
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Director |
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February 9, 2015 |
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/s/ Amir Elstein
Amir Elstein |
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Director |
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February 9, 2015 |
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Name |
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Title(s) |
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Date |
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/s/ Jean-Michel Halfon
Jean-Michel Halfon |
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Director |
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February 9, 2014 |
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/s/ Richard A. Lerner
Richard A. Lerner |
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Director |
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February 9, 2015 |
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/s/ Moshe Many
Moshe Many |
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Director |
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February 9, 2015 |
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/s/ Galia Maor
Galia Maor |
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Director |
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February 9, 2015 |
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/s/ Joseph Nitzani
Joseph Nitzani |
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Director |
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February 9, 2015 |
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/s/ Dan Propper
Dan Propper |
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Director |
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February 9, 2015 |
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/s/ Ory Slonim
Ory Slonim |
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Director |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Authorized U.S. Representative |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in North Wales, Pennsylvania on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE IV, LLC |
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By: |
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/s/ Deborah Griffin |
Name: |
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Deborah Griffin |
Title: |
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President, Chief Executive Officer and Manager |
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ Deborah Griffin
Deborah Griffin |
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President, Chief Executive Officer
and Manager |
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February 9, 2015 |
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/s/ Frank Kimick
Frank Kimick |
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Vice President and Treasurer (Principal Financial Officer and Principal Accounting
Officer) |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in North Wales, Pennsylvania on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE V, LLC |
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By: |
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/s/ Deborah Griffin |
Name: |
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Deborah Griffin |
Title: |
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President, Chief Executive Officer and Manager |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ Deborah Griffin
Deborah Griffin |
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President, Chief Executive Officer
and Manager |
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February 9, 2015 |
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/s/ Frank Kimick
Frank Kimick |
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Vice President and Treasurer (Principal Financial Officer and Principal Accounting
Officer) |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in North Wales, Pennsylvania on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE VI, LLC |
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By: |
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/s/ Deborah Griffin |
Name: |
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Deborah Griffin |
Title: |
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President, Chief Executive Officer and Manager |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ Deborah Griffin
Deborah Griffin |
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President, Chief Executive Officer
and Manager |
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February 9, 2015 |
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/s/ Frank Kimick
Frank Kimick |
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Vice President and Treasurer (Principal Financial Officer and Principal Accounting
Officer) |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Curaçao on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE COMPANY B.V. |
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By: |
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/s/ George Bergmann |
Name: |
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George Bergmann |
Title: |
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Managing Director |
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By: |
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/s/ Edgard Lotman |
Name: |
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Edgard Lotman |
Title: |
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Supervisory Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ George Bergmann
George Bergmann |
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Managing Director |
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February 9, 2015 |
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/s/ Roland Beunis
Roland Beunis |
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Managing Director |
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February 9, 2015 |
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/s/ Paul Whitty
Paul Whitty |
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Supervisory Director |
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February 9, 2015 |
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/s/ Edgard Lotman
Edgard Lotman |
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Supervisory Director |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Authorized U.S. Representative |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Curaçao on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE IV B.V. |
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By: |
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/s/ George Bergmann |
Name: |
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George Bergmann |
Title: |
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Managing Director |
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By: |
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/s/ Edgard Lotman |
Name: |
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Edgard Lotman |
Title: |
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Supervisory Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ George Bergmann
George Bergmann |
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Managing Director |
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February 9, 2015 |
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/s/ Roland Beunis
Roland Beunis |
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Managing Director |
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February 9, 2015 |
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/s/ Paul Whitty
Paul Whitty |
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Supervisory Director |
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February 9, 2015 |
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/s/ Edgard Lotman
Edgard Lotman |
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Supervisory Director |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Authorized U.S. Representative |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Curaçao on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE V B.V. |
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By: |
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/s/ George
Bergmann |
Name: |
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George Bergmann |
Title: |
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Managing Director |
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By: |
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/s/ Edgard
Lotman |
Name: |
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Edgard Lotman |
Title: |
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Supervisory Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ George Bergmann
George Bergmann |
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Managing Director |
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February 9, 2015 |
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/s/ Roland Beunis
Roland Beunis |
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Managing Director |
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February 9, 2015 |
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/s/ Paul Whitty
Paul Whitty |
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Supervisory Director |
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February 9, 2015 |
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/s/ Edgard Lotman
Edgard Lotman |
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Supervisory Director |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Authorized U.S. Representative |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Curaçao on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE N.V. |
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By: |
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/s/ George
Bergmann |
Name: |
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George Bergmann |
Title: |
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Managing Director |
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By: |
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/s/ Edgard
Lotman |
Name: |
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Edgard Lotman |
Title: |
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Managing Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ George Bergmann
George Bergmann |
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Managing Director |
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February 9, 2015 |
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/s/ Roland Beunis
Roland Beunis |
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Managing Director |
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February 9, 2015 |
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/s/ Edgard Lotman
Edgard Lotman |
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Managing Director |
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February 9, 2015 |
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/s/ Deborah Griffin
Deborah Griffin |
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Authorized U.S. Representative |
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February 9, 2015 |
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form F-3 and
has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the Netherlands on February 9, 2015.
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TEVA PHARMACEUTICAL FINANCE NETHERLANDS II B.V. |
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By: |
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Teva Pharmaceuticals Europe B.V., its Managing Director |
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By: |
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/s/ Robert Koremans |
Name: |
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Robert Koremans |
Title: |
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Managing Director |
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By: |
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/s/ Gianfranco Nazzi |
Name: |
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Gianfranco Nazzi |
Title: |
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Managing Director |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement
has been signed by the following persons in the capacities, which are with Teva Pharmaceuticals Europe B.V., the Managing Director of Teva Pharmaceutical Finance Netherlands II B.V., and on the dates indicated.
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Name |
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Title(s) |
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Date |
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/s/ Robert Koremans
Robert Koremans |
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Managing Director |
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February 9, 2015 |
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/s/ Dipankar Bhattacharjee
Dipankar Bhattacharjee |
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Managing Director |
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February 9, 2015 |
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/s/ Gianfranco Nazzi
Gianfranco Nazzi |
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Managing Director |
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February 9, 2015 |
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/s/ Tim Oreskovic Tim Oreskovic |
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Managing Director |
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February 9, 2015 |
EXHIBIT INDEX
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*1.1 |
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Underwriting Agreement relating to ordinary shares issued by Teva Pharmaceutical Industries Limited |
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*1.2 |
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Underwriting Agreement relating to purchase contracts issued by Teva Pharmaceutical Industries Limited |
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*1.3 |
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Underwriting Agreement relating to units issued by Teva Pharmaceutical Industries Limited |
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*1.4 |
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Underwriting Agreement relating to warrants issued by Teva Pharmaceutical Industries Limited |
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*1.5 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Industries Limited |
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*1.6 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance IV, LLC |
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*1.7 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance V, LLC |
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*1.8 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance VI, LLC |
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*1.9 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance Company B.V. |
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*1.10 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance IV B.V. |
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*1.11 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance V B.V. |
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*1.12 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance N.V. |
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*1.13 |
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Underwriting Agreement relating to debt securities issued by Teva Pharmaceutical Finance Netherlands II B.V. |
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4.1 |
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Amended and Restated Deposit Agreement, dated November 5, 2012, among Teva Pharmaceutical Industries Limited, JPMorgan Chase Bank N.A., as depository, and the holders from time to
time of ADSs (incorporated by reference to Teva Pharmaceutical Industries Limiteds Registration Statement on Form F-6 (Reg. No. 333-184652)) |
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4.2 |
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Form of American Depositary Receipt (incorporated by reference to Teva Pharmaceutical Industries Limiteds Registration Statement on Form F-6 (Reg. No.
333-184652)) |
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4.3 |
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Form of Senior Teva Pharmaceutical Industries Limited Indenture |
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4.4 |
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Form of Guaranteed Senior Finance Subsidiary Indenture |
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4.5 |
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Form of Subordinated Teva Pharmaceutical Industries Limited Indenture |
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4.6 |
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Form of Guaranteed Subordinated Finance Subsidiary Indenture |
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4.7 |
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Memorandum of Association of Teva Pharmaceutical Industries Limited (English translation or summary from Hebrew original, which is the official version) (incorporated by reference
to Exhibit 3.1 to Teva Pharmaceutical Industries Limiteds Registration Statement on Form F-1 (Reg. No. 33-15736)) |
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4.8 |
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Amendment to Memorandum of Association of Teva Pharmaceutical Industries Limited, dated as of June 29, 2010 (English translation or summary from Hebrew original, which is the
official version) (incorporated by reference to Exhibit 1.1 to Teva Pharmaceutical Industries Limiteds Report of Foreign Private Issuer on Form 6-K filed on July 28, 2011 (Reg. No. 000-16174)) |
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4.9 |
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Articles of Association of Teva Pharmaceutical Industries Limited (English translation or summary from Hebrew original, which is the official version) (incorporated by reference to
Exhibit 1.1 to Teva Pharmaceutical Industries Limiteds Report of Foreign Private Issuer on Form 6-K filed on November 1, 2012 (Reg. No. 001-16174)) |
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*4.10 |
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Form of Purchase Contract Agreement |
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*4.11 |
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Form of Warrant Agreement |
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5.1 |
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Opinion of Tulchinsky Stern Marciano Cohen Levitski & Co. (Israeli law) |
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5.2 |
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Opinion of Willkie Farr & Gallagher LLP (New York law) |
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5.3 |
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Opinion of VanEps Kunneman VanDoorne (Curaçao law) |
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5.4 |
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Opinion of Van Doorne N.V. (Dutch law) |
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12.1 |
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Statement regarding the computation of consolidated ratio of earnings to fixed charges |
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23.1 |
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Consent of Kesselman & Kesselman |
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23.2 |
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Consent of Tulchinsky Stern Marciano Cohen Levitski & Co. (included in Exhibit 5.1) |
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23.3 |
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Consent of Willkie Farr & Gallagher LLP (included in Exhibit 5.2) |
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23.4 |
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Consent of VanEps Kunneman VanDoorne (included in Exhibit 5.3) |
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23.5 |
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Consent of Van Doorne, N.V. (included in Exhibit 5.4) |
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24.1 |
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Power of Attorney of Teva Pharmaceutical Industries Limited (included on the signature pages of this Registration Statement) |
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25.1 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Industries Limited Senior Indenture |
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25.2 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Industries Limited Subordinated Indenture |
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25.3 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance IV, LLC Senior Indenture |
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25.4 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance IV, LLC Subordinated Indenture |
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25.5 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance V, LLC Senior Indenture |
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25.6 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance V, LLC Subordinated Indenture |
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25.7 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance VI, LLC Senior Indenture |
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25.8 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance VI, LLC Subordinated Indenture |
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25.9 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance Company B.V. Senior Indenture |
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25.10 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance Company B.V. Subordinated Indenture |
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25.11 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance IV B.V. Senior Indenture |
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25.12 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance IV B.V. Subordinated Indenture |
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25.13 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance V B.V. Senior Indenture |
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25.14 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance V B.V. Subordinated Indenture |
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25.15 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance N.V. Senior Indenture |
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25.16 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance N.V. Subordinated Indenture |
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25.17 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance Netherlands II B.V. Senior Indenture |
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25.18 |
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Statement of Eligibility of The Bank of New York Mellon on Form T-1, as Trustee under the Teva Pharmaceutical Finance Netherlands II B.V. Subordinated Indenture |
* |
To be filed by amendment or incorporated by reference pursuant to a report on Form 6-K. |
Exhibit 4.3
TEVA PHARMACEUTICAL INDUSTRIES
LIMITED
and
THE BANK OF NEW YORK MELLON, as Trustee
SENIOR INDENTURE
Dated as of ,
TABLE OF CONTENTS
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Page |
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ARTICLE 1. |
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DEFINITIONS |
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1 |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2. |
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SECURITIES |
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5 |
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Section 2.01. |
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Forms Generally |
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5 |
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Section 2.02. |
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Form of Trustees Certification of Authentication |
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5 |
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Section 2.03. |
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Amount Unlimited; Issuable in Series |
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5 |
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Section 2.04. |
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Authentication and Delivery of Securities |
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8 |
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Section 2.05. |
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Execution of Securities |
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9 |
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Section 2.06. |
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Certificate of Authorization |
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9 |
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Section 2.07. |
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Denomination and Date of Securities; Payments of Interest |
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9 |
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Section 2.08. |
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Registration, Transfer and Exchange |
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10 |
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Section 2.09. |
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Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
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11 |
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Section 2.10. |
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Cancellation of Securities |
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12 |
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Section 2.11. |
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Temporary Securities |
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12 |
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Section 2.12. |
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CUSIP Numbers |
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13 |
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Section 2.13. |
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Registered Global Securities |
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13 |
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ARTICLE 3. |
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COVENANTS OF THE ISSUER AND THE TRUSTEE |
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13 |
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Section 3.01. |
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Payment of Principal and Interest |
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13 |
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Section 3.02. |
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Offices for Payments, etc. |
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14 |
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Section 3.03. |
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Appointment to Fill a Vacancy in Office of Trustee |
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14 |
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Section 3.04. |
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Paying Agents |
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14 |
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Section 3.05. |
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Certificate of the Issuer |
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15 |
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Section 3.06. |
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Securityholders Lists |
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15 |
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Section 3.07. |
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Reports by the Issuer |
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16 |
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Section 3.08. |
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Reports by the Trustee |
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16 |
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Section 3.09. |
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Calculation of Original Issue Discount |
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16 |
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ARTICLE 4. |
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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16 |
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Section 4.01. |
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Event of Default; Acceleration of Maturity, Waiver of Default |
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16 |
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Section 4.02. |
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Collection of Indebtedness by Trustee; Trustee May Prove Debt |
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19 |
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(i)
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Section 4.03. |
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Application of Proceeds |
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21 |
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Section 4.04. |
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Suits for Enforcement |
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22 |
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Section 4.05. |
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Restoration of Rights on Abandonment of Proceeding |
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22 |
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Section 4.06. |
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Limitations on Suits by Securityholder |
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22 |
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Section 4.07. |
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Unconditional Right of Securityholders to Institute Certain Suits |
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23 |
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Section 4.08. |
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Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default |
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23 |
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Section 4.09. |
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Control by Securityholders |
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23 |
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Section 4.10. |
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Waiver of Past Defaults |
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24 |
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Section 4.11. |
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Trustee to Give Notice of Default, But May Withhold in Certain Circumstances |
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24 |
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Section 4.12. |
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Right of Court to Require Filing of Undertaking to Pay Costs |
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24 |
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ARTICLE 5. |
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CONCERNING THE TRUSTEE |
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25 |
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Section 5.01. |
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Duties and Responsibilities of the Trustee; During Default; Prior to Default |
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25 |
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Section 5.02. |
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Certain Rights of the Trustee |
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26 |
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Section 5.03. |
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Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
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28 |
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Section 5.04. |
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Trustee and Agents May Hold Securities; Collections, etc. |
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28 |
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Section 5.05. |
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Moneys Held by Trustee |
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28 |
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Section 5.06. |
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Compensation and Indemnification of Trustee and its Prior Claim |
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28 |
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Section 5.07. |
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Right of Trustee to Rely on Officers Certificate, etc. |
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29 |
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Section 5.08. |
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Persons Eligible for Appointment as Trustee |
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29 |
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Section 5.09. |
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Resignation and Removal; Appointment of Successor Trustee |
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29 |
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Section 5.10. |
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Acceptance of Appointment by Successor Trustee |
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31 |
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Section 5.11. |
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Merger, Conversion, Consolidation or Succession to Business of Trustee |
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31 |
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ARTICLE 6. |
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CONCERNING THE SECURITYHOLDERS |
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32 |
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Section 6.01. |
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Evidence of Action Taken by Securityholders |
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32 |
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Section 6.02. |
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Proof of Execution of Instruments and of Holding of Securities; Record Date |
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32 |
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Section 6.03. |
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Holders to be Treated as Owners |
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33 |
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Section 6.04. |
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Securities Owned by Issuer Deemed Not Outstanding |
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33 |
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Section 6.05. |
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Right of Revocation of Action Taken |
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33 |
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(ii)
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ARTICLE 7. |
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SUPPLEMENTAL INDENTURES |
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34 |
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Section 7.01. |
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Supplemental Indentures without Consent of Securityholders |
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34 |
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Section 7.02. |
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Supplemental Indentures with Consent of Securityholders |
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35 |
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Section 7.03. |
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Effect of Supplemental Indenture |
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36 |
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Section 7.04. |
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Documents to Be Given to Trustee |
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36 |
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Section 7.05. |
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Notation on Securities in Respect of Supplemental Indentures |
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37 |
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ARTICLE 8. |
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CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
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37 |
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Section 8.01. |
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Issuer May Consolidate, etc., on Certain Terms |
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37 |
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Section 8.02. |
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Successor Substituted |
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37 |
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Section 8.03. |
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Opinion of Counsel to Trustee |
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38 |
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ARTICLE 9. |
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SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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38 |
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Section 9.01. |
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Satisfaction and Discharge of Indenture |
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38 |
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Section 9.02. |
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Application by Trustee of Funds Deposited for Payment of Securities |
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41 |
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Section 9.03. |
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Repayment of Moneys Held by Paying Agent |
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41 |
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Section 9.04. |
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
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41 |
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ARTICLE 10. |
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MISCELLANEOUS PROVISIONS |
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42 |
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Section 10.01. |
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Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability |
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42 |
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Section 10.02. |
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Provisions of Indenture for the Sole Benefit of Parties and Securityholders |
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42 |
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Section 10.03. |
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Successors and Assigns of Issuer Bound by Indenture |
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42 |
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Section 10.04. |
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Notices and Demands on Issuer, Trustee and Securityholders |
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42 |
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Section 10.05. |
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Officers Certificates and Opinions of Counsel; Statements to be Contained Therein |
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44 |
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Section 10.06. |
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Payments Due on Saturdays, Sundays and Holidays |
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45 |
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Section 10.07. |
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Conflict of any Provision of Indenture with Trust Indenture Act of 1939 |
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45 |
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Section 10.08. |
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New York Law to Govern |
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45 |
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Section 10.09. |
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Counterparts |
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45 |
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Section 10.10. |
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Effect of Headings |
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45 |
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Section 10.11. |
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Securities in a Non-U.S. Currency |
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45 |
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Section 10.12. |
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Submission to Jurisdiction |
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46 |
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Section 10.13. |
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Judgment Currency |
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46 |
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Section 10.14. |
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Waiver of Jury Trial |
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47 |
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Section 10.15. |
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Foreign Account Tax Compliance Act |
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47 |
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(iii)
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ARTICLE 11. |
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REDEMPTION OF SECURITIES AND SINKING FUNDS |
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47 |
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Section 11.01. |
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Applicability of Article |
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47 |
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Section 11.02. |
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Notice of Redemption; Partial Redemptions |
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47 |
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Section 11.03. |
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Payment of Securities Called for Redemption |
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48 |
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Section 11.04. |
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Exclusion of Certain Securities from Eligibility for Selection for Redemption |
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49 |
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Section 11.05. |
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Mandatory and Optional Sinking Funds |
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49 |
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(iv)
THIS INDENTURE, dated as of
, between Teva Pharmaceutical Industries Limited, a
corporation incorporated under the laws of Israel (the Issuer), and The Bank of New York Mellon, a New York banking corporation (the Trustee),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the
Securities) up to such principal amount or amounts as may from time to time be authorized in accordance with the terms of this Indenture and to provide, among other things, for the authentication, delivery and administration
thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to
make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided herein or in any indenture
supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term generally accepted accounting principles means such accounting
principles as are generally accepted at the time of any computation. The words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Authorized Agent shall have the meaning set forth in Section 10.12.
Bearer Security means any Security other than a Registered Security.
Board means either the Board of Directors of the Issuer or any committee
of such Board duly authorized to act hereunder.
Board Resolution means one or more resolutions, certified
by the secretary of the Board to have been duly adopted or consented to by the Board and to be in full force and effect, and delivered to the Trustee.
Business Day means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are authorized by law or regulation to close.
Commission means the Securities and Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on
such date.
Corporate Trust Office means the office of the Trustee located in The City
of New York at which at any particular time its corporate trust business shall be administered (which at the date of this Indenture is located at 101 Barclay Street, 4th Floor East, New York, New 10286), Attention: Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the
Issuer).
Depositary means, with respect to the Securities of any series issuable or issued in the form of
one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
Depositary shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, Depositary as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.
Dollar means the coin or
currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Event of Default means any event or condition specified as such in Section 4.01.
Holder, Holder of Securities, Securityholder or other similar terms mean the
registered holder of any Security.
Indenture means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
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Interest means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
Issuer means (except as otherwise provided in Article 8) Teva
Pharmaceutical Industries Limited, a corporation incorporated under the laws of Israel, and, subject to Article 8, its successors and assigns.
Judgment Currency shall have the meaning set forth in Section 10.13.
New York Banking Day shall have the meaning set forth in Section 10.13.
Non-U.S. Currency means a currency issued by the government of a country other than the United States (or any currency unit comprised of any such currencies).
Officers Certificate means, a certificate (i) signed by any two officers of the Issuer authorized by the
Board to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939.
Opinion of Counsel means an opinion in writing reasonably satisfactory to the Trustee signed by legal counsel who may be an employee of or counsel to the Issuer. Each such opinion shall
comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.05, if and to the extent required hereby.
Original Issue Date of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue
Discount Security means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
Outstanding, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as
of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions
thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer for the holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in
substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09
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(except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue 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 4.01.
Person means any individual, corporation, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
Principal
whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include and premium, if any.
Registered Global Security means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.03,
and bearing the legend prescribed by the applicable supplemental indenture.
Registered Security means any
Security registered on the Security register of the Issuer.
Required Currency shall have the meaning set
forth in Section 10.13.
Responsible Officer when used with respect to the Trustee means any officer
of the Trustee, including any vice president, any trust officer, any senior associate 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 such officers knowledge of and familiarity with that particular subject and who shall have direct responsibility for the
administration of this Indenture.
Security or Securities has the meaning stated in the
first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
Trustee means the Person identified as Trustee in the first paragraph hereof and, subject to the provisions of Article 5, shall also include any successor trustee.
Trust Indenture Act of 1939 (except as otherwise provided in Sections 7.01 and 7.02) means the Trust
Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
U.S. Government
Obligations shall have the meaning set forth in Section 9.01.
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vice president when used with respect to the Issuer or the Trustee, means
any vice president, whether or not designated by a number or a word or words added before or after the title of vice president.
Yield to Maturity means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of
interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2.
SECURITIES
Section 2.01. Forms Generally. The Securities of each series shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed or lithographed on security printed paper or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02.
Form of Trustees Certification of Authentication. The Trustees certificate of authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
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The Bank of New York Mellon, as Trustee |
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By: |
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Authorized Signatory |
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or
more series and unless provided for otherwise in an indenture supplemental hereto, each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Issuer. There shall be established in or pursuant to a
resolution of the Board and set forth in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the designation of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
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(b) any limit upon the aggregate principal amount of the Securities of the series that may
be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or
11.03);
(c) if other than Dollars, the coin or currency in which the Securities of that series are denominated (including,
but not limited to, any Non-U.S. Currency);
(d) the date or dates on which the principal of the Securities of the series is
payable;
(e) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such
rate shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable and/or the method
by which such rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the price or
prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption
sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of
the principal of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the
Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;
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(m) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the
manner in which such amounts shall be determined;
(n) if the Holders of the Securities of the series may convert or exchange
the Securities of the series into or for securities of the Issuer or of other entities or other property (or the cash value thereof), the specific terms of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the
payment of interest thereon and, if other than as provided herein, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is
not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(r) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the
Securities of such series;
(s) any applicable United States federal income tax and Israel income tax provisions, including,
but not limited to: whether and under what circumstances the Issuer will pay additional amounts on Securities for any tax, assessment or governmental charge withheld or deducted and, if so, whether it will have the option to redeem those Securities
rather than pay the additional amounts; tax considerations applicable to any discounted Securities or to Securities issued at par that are treated as having been issued at a discount for United States federal income tax purposes; and tax
considerations applicable to any Securities denominated and payable in foreign currencies;
(t) whether certain payments on
the Securities will be guaranteed under a financial insurance guaranty policy and the terms of that guaranty;
(u) any
applicable selling restrictions;
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(v) any other events of default, modifications or elimination of any acceleration rights, or
covenants with respect to the Securities of such series and any terms required by or advisable under applicable laws or regulations, including laws and regulations relating attributes required for the Securities to be afforded certain capital
treatment for bank regulatory or other purposes; and
(w) any other terms of the series.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board or in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto.
Section 2.04.
Authentication and Delivery of Securities. At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, signed by any two officers of the Issuer authorized by the Board to execute any such order, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board authorizing the action taken pursuant to the resolution or resolutions
delivered under clause 2.04(b) below;
(b) a copy of any resolution or resolutions of the Board relating to such series, in
each case certified by the Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any;
(d) an Officers Certificate setting forth the form and terms of the Securities as required pursuant to
Section 2.01 and 2.03, respectively and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel,
prepared in accordance with Section 10.05,
(i) to the effect that the form or forms and terms of such
Securities have been established by or pursuant to a resolution of the Board or by a supplemental indenture as permitted by Sections 2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) to the effect that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer; and
(iii) covering such other matters as the Trustee may reasonably request.
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The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing
Holders.
Section 2.05. Execution of Securities. The Securities shall be signed on behalf of the Issuer by any two
officers of the Issuer authorized by the Board to execute such Securities, which Securities may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical and other
minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by
such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authorization. Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
Section 2.07. Denomination and Date of Securities; Payments of Interest. The Securities shall be issuable as registered
securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer executing the same may determine with the approval
of the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its
authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment
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date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security subsequent to the record
date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date for such series, in which case such defaulted interest shall be paid to the persons
in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the holders of Securities not less than 15 days preceding such subsequent record date. The term record date as used with respect to any interest payment date (except a date for payment of
defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the 15th day of the next
preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such calendar month, whether or not such record date is a Business Day.
Section 2.08. Registration, Transfer and Exchange. The Issuer will keep or cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities as in this Article provided.
Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount.
Any Security or Securities of any series may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as
provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
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The Issuer shall not be required to exchange or register a transfer of (a) any
Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities of such series to be redeemed, (b) any Securities selected, called or being called for redemption except, in the case of any
Security where notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed or (c) any Securities of any series between a record date and the next succeeding payment date.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
The Trustee
shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any
transfers between or among Depositary Participants or beneficial owners of interests in any Registered Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do
so if and when expressly required by the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any agent shall have any responsibility for any actions taken or not taken by the Depositary.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the
Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same series, bearing a number not contemporaneously outstanding, in exchange and
substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a substitute Security shall furnish to the Issuer and to the Trustee and any agent of
the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or
theft of such Security and of the ownership thereof in the case of mutilation or defacement shall surrender the Security to the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any Security which has matured or is about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to
the Issuer and the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the
Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
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Every substitute Security of any series issued pursuant to the provisions of this section by
virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, 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 (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder. All
Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and
shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.10. Cancellation of Securities. All Securities surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the
Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held by it in accordance with its
procedures for the disposition of cancelled Securities and deliver a certificate of disposition to the Issuer upon request. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or satisfaction of the
indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute
and the Trustee shall authenticate and deliver temporary Securities for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable
as registered Securities without coupons, of any authorized denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities,
all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be
authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such
series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall
authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series
shall be entitled to the same benefits under this Indenture as definitive Securities of such series unless otherwise established pursuant to Section 2.03.
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Section 2.12. CUSIP Numbers. The Issuer 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 and other notices to the Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP numbers.
Section 2.13. Registered Global Securities. None of the Issuer, the Trustee or any Agent shall have any responsibility or
obligation to any beneficial owner of an interest in a Registered Global Security, any members of, or a participant in, the Depositary (Agent Members) or other Person with respect to the accuracy of the records of the Depositary
or its nominee or any participant or Agent Member thereof, with respect to any ownership interest in a Registered Global Security or with respect to the delivery to any participant, Agent Member, beneficial owner or other Person (other than the
Depositary) of any notice or the payment of any amount or delivery of any Registered Global Security (or other security or property) under or with respect to such Registered Global Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders in respect of the Registered Global Securities shall be given or made only to or upon the order of the registered Holders. The rights of beneficial owners in any Registered Global Security shall be
exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Issuer, the Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect
to its Agent Members, participants and any beneficial owners.
ARTICLE 3.
COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such
Securities. Subject to any other provisions that may be established pursuant to Section 2.03, the interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon
the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such
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terms, and express mention of the payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions
hereof where such express mention is not made.
Section 3.02. Offices for Payments, etc. So long as any of the
Securities remain outstanding, the Issuer will maintain in the Borough of Manhattan, The City of New York, the following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities
may be presented for registration of transfer and for exchange as in this Indenture or any supplemental indenture provided and (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the
Corporate Trust Office of the Trustee, as the office to be maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change
in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office.
The
Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.03 and where the Securities of that series may be presented for registration of transfer as provided in this Indenture, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or
expedient; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt written notice of any
such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The
Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect
to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c)
that it will pay any such sums so held in trust by it to the Trustee upon the Trustees written request at any time during the continuance of the failure referred to in clause 3.04(b) above.
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The Issuer will, on the Business Day prior to each due date of the principal of or interest
on the Securities of such series, deposit with the paying agent a sum in immediately available funds sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the
Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities of
any Series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and
discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this
Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary
notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions of Sections 9.03 and 9.04.
For the avoidance of doubt, any paying agent hereunder shall comply with applicable backup withholding tax and information reporting requirements under the U.S. Internal Revenue Code of 1986, as amended,
and the U.S. Treasury Regulations promulgated thereunder with respect to payments made under the Securities of any series (including, to the extent required, the collection of Internal Revenue Service Forms W-8 and W-9 and the filing of U.S.
Internal Revenue Service Forms 1099 and 1096).
Section 3.05. Certificate of the Issuer. The Issuer will furnish
to the Trustee within 120 days after the end of each fiscal year of the Issuer, commencing on , an Officers Certificate of
the Issuer as to the signers knowledge of the Issuers compliance with all conditions and covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided under the
Indenture). If any Securities are guaranteed by a guarantor, the guarantor shall also provide such certificate. In the event an Officer of the Issuer comes to have actual knowledge of an Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, regardless of the date, the Issuer shall deliver an Officers Certificate to the Trustee specifying such Default and the nature and status thereof.
Section 3.06. Securityholders Lists. If and so long as the Trustee shall not be the Security registrar for the Securities of
any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of the Securities of such series pursuant to Section 312 of the
Trust
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Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a
date not more than 15 days prior to the time such information is furnished.
Section 3.07. Reports by the Issuer.
The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Issuer may be required to
file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934. Reports, information and documents filed by the Issuer with the Commission via the EDGAR system will be deemed filed with the Trustee
for purposes of this Section 3.07 as of the time that such reports, information and documents are filed via EDGAR. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustees
receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers Certificates).
The Trustee shall have no obligation to determine if and when
the reports, information and documents of the Issuer are filed with the Commission via the EDGAR system and available on the Commissions EDGAR website. If the Issuer ceases to be a reporting company with the Commission, it shall provide the
Trustee with prompt written notification at that time and shall provide the Trustee with such reports, information and documents as set forth in this Section 3.07.
Section 3.08. Reports by the Trustee. Any Trustees report required under Section 313(a) of the Trust Indenture Act of 1939 shall be transmitted on or before July 15 in each
year following the date hereof, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior thereto.
Section 3.09. Calculation of Original Issue Discount. The Issuer shall provide to the Trustee on a timely basis any form
required to be submitted by the Trustee on behalf of the Issuer with the Internal Revenue Service and the Holders of Securities relating to original issue discount, including, without limitation, Form 1099-OID or any successor form.
ARTICLE 4.
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default;
Acceleration of Maturity, Waiver of Default. Unless otherwise established in accordance with Section 2.03 or by any applicable supplemental indenture, Event of Default with respect to Securities of any series wherever
used herein means each one of the following events which shall have occurred and be continuing (whatever
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the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body):
(a) default in payment of premium or principal in respect of
the Securities;
(b) default for more than 30 days in the payment of interest in respect of the Securities; or
(c) the failure to perform or observe any other obligations under the Securities which failure continues for the period of 60 days next
following service on the Issuer and any guarantor of the Securities of notice requiring the same to be remedied; or
(d) the
entry by a court having jurisdiction in the premises of:
(i) a decree or order for relief in respect of the
Issuer or any guarantor of the Securities in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; or
(ii) a decree or order adjudging the Issuer or any guarantor of the Securities a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any such guarantor under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or any such guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by the
Issuer or any guarantor of the Securities of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer or such guarantor in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or such guarantor, or the filing by the Issuer or such guarantor of a petition or answer or consent seeking reorganization or relief under
any applicable U.S. federal or state law, or the consent by the Issuer or such guarantor to the filing of such petition or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Issuer or such guarantor or of any substantial part of its property, or the making by the Issuer or such guarantor of an assignment for the benefit or creditors, or the admission by the Issuer or such guarantor in writing of
its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or such guarantor expressly in furtherance of any such action; or
(f) any other Event of Default provided in the supplemental indenture or resolution of the Board under which such series of Securities is issued or in the form of Security for such series.
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Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default
described in clauses 4.01(a), 4.01(b), 4.01(c), or 4.01(f) above (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and
every such case, except for any series the principal of which shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of all series affected thereby then
Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration
the same shall become immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(c) or 4.01(f) (if the Event of Default under clauses 4.01(c) or 4.01(f) is with
respect to all series of Securities at the time Outstanding) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the holders of
not less than 25% in aggregate principal amount of all the then Outstanding Securities hereunder (treated as one class) for which any applicable supplemental indenture does not prevent acceleration under the relevant circumstances, by notice in
writing to the Issuer and any guarantor of then outstanding Securities (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount Securities, such portion of the principal as
may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. Unless otherwise
set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is continuing, then the principal and accrued and unpaid interest, and premium of any, with respect to any Securities then
Outstanding 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.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon all the Securities of such series (or of all the Securities, as the case may be)
and the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest
is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as
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the case may be) to the date of such payment or deposit) and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other
expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall
have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the holders of a majority in aggregate principal amount of all the Securities of each such series (or of all the
Securities, as the case may be), then Outstanding (in each case treated as one class), by written notice to the Issuer and to the Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been
accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such
acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on
any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of
any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay
to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of
such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each
predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the
registered Holders, whether or not the principal of and interest on the Securities of such series be overdue.
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In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee,
in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to
judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon such Securities,
wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the
Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or
reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities
of any series, or to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law
and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or
deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby
authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover
reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except in the
event of a determination of its own negligence or bad faith.
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Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof
on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any holders of such Securities parties to any such
proceedings.
Section 4.03. Application of Proceeds. Any moneys collected by the Trustee pursuant to this Article
in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the several Securities in respect of
which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if only partially paid, or upon
surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series in respect of which
monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except in the event of a determination of its own negligence or bad faith;
SECOND: In case the principal
of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the
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payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such
interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in
case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over
interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the
remainder, if any, to the Issuer or as a court of competent jurisdiction may direct.
Section 4.04. Suits for
Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as
the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the
exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on Abandonment of Proceeding. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights,
remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
Section 4.06. Limitations on Suits by Securityholder. No holder of any Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any
action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder,
unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of
each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action
or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with
every
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other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any provision of this
Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any right under this Indenture, except in the manner
herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of this Section, each and every Securityholder and the Trustee shall be
entitled to such relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of
Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on
or after the respective due dates expressed in such Security, or to institute 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 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in
Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any
Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein;
and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the
Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in aggregate principal
amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and
provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully be taken or if
the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or pursuant to
such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to
ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 4.10. Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting as a single class) may on
behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 4.01 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, any guarantor, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred 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 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall give to the
Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days
after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term default or defaults for the purposes of this section being hereby defined to mean any event or
condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of
any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series
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holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the
suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit
relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest
on any Security on or after the due date expressed in such Security.
ARTICLE 5.
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
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(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders pursuant to Section 4.09 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.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act of 1939.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, Officers Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper
or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any
request, direction, order or demand of the Issuer mentioned herein shall be sufficiently evidenced by an Officers Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board may be
evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of the Issuer;
(c) the
Trustee may consult with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in
accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts
or powers vested in it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory
to it against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be
liable for any action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
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(f) 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, consent, order, approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the
holders of not less than a majority in aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be
incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against
such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer promptly upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers Certificate;
(i) the Trustee shall not be deemed to have notice of any Event of Default or an event which, with notice or lapse of time or both, would
constitute an Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act
hereunder; and
(k) the Trustee may request that the Issuer deliver an Officers Certificate setting forth the names of
individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate, including any person
specified as so authorized in any such certificate previously delivered and not superseded.
(l) in no event shall the Trustee
be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of
such loss or damage and regardless of the form of action;
(m) in no event shall the Trustee be responsible or liable for any
failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or
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indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes
or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances; and
(n) neither the Trustee nor any
Agent shall have any obligation or duty to monitor, determine or inquire as to compliance by the Issuer or the Securityholders with or with respect to any securities or tax laws (including but not limited to any United States federal or state or
other securities or tax laws), or, except as specifically provided herein, obtain documentation on any transfers or exchanges of the Securities of any series. Nothing in this provision shall be deemed to limit the Trustees duty to comply with
any obligations it may have pursuant to applicable law.
Section 5.03. Trustee Not Responsible for Recitals,
Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes
no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of
the Securities or of the proceeds thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections,
etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal
with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section 9.04 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. All such moneys shall remain uninvested and neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
Section 5.06.
Compensation and Indemnification of Trustee and its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation as the Issuer and the Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance shall be determined to have been caused by its own negligence or bad
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faith. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee and their agents, officers, director and employees for, and to hold each of them harmless against, any loss,
liability or expense arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises, except to the extent such loss, liability or expense shall be determined to have been caused by the negligence or bad faith of the Trustee, or such predecessor Trustee or their respective agents,
officers, directors and employees. The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and
advances shall constitute additional indebtedness hereunder and shall survive the payment in full of the Securities issued hereunder, the resignation or removal of the Trustee, or the satisfaction and discharge of this Indenture. Such additional
indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities, and the Securities are hereby
subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with an Event of
Default specified in Section 4.01(d) or Section 4.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any
applicable federal or state bankruptcy, insolvency or other similar law.
Section 5.07. Right of Trustee to Rely on
Officers Certificate, etc. Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or
suffering or omitting any action hereunder, such matter may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the laws of the United States of America or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees
hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by mailing notice thereof by first class mail to Holders of the applicable series of
Securities at their last addresses as they shall appear on the Security register. Upon receiving such notice of
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resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board, one
copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days
after the mailing of such notice of resignation, the resigning trustee at the Issuers expense may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of
a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor
trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) (ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) (iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its
property shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed
by order of the Board of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal
of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.10.
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Section 5.10. Acceptance of Appointment by Successor Trustee. Any successor
trustee appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with
respect to all or any applicable series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to
act shall, subject to Section 9.04, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which
such successor trustee is acting as trustee at their last addresses as they shall appear in the Security register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of
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the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without
the execution or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
ARTICLE 6.
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date. Subject to Sections 5.01 and 5.02,
the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or
revoke such vote or consent.
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Section 6.03. Holders to be Treated as Owners. The Issuer, the Trustee and any
agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and
neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the extent of the sum or sums so
paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Section 6.04.
Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this
Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of
determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have
been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor
upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel
shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers 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 6.05. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the
Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the
evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such
action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in
exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of
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the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding
upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
ARTICLE 7.
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures without Consent of Securityholders. The Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such
action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another legal entity to the
Issuer, or successive successions, and the assumption by the successor legal entity of the covenants, agreements and obligations of the Issuer pursuant to Article 8;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities,
and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders
of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure
any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other
provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any
material respect;
(e) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; and
(f) to evidence and provide for the acceptance of appointment hereunder by a successor trustee with respect to the Securities
of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of
Section 5.10.
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The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall not be
obligated to enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 7.02.
Section 7.02. Supplemental Indentures with Consent of Securityholders. With the
consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer,
when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby), and the Trustee
may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall (a) (i) extend the final maturity of any Security, (ii) reduce the principal
amount thereof, (iii) reduce the rate or extend the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue
discount), or interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as
provided in the Securities or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to
Section 4.01 or the amount thereof provable in bankruptcy pursuant to Section 4.02, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities for securities of the Issuer or a guarantor of the
Securities or of other entities or other property (or the cash value thereof), including the determination of the amount of securities or other property (or cash) into which the Securities shall be converted or exchanged, other than as provided in
the antidilution provisions or other similar adjustment provisions of the Securities or otherwise in accordance with the terms thereof, (ix) alter the provisions of Section 10.11 or Section 10.13 or impair or affect the right of any
Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or
(b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.
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A supplemental indenture which changes or eliminates any covenant or other provision of this
Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed not
to affect the rights under this Indenture of the holders of Securities of any other series.
Upon the request of the Issuer,
accompanied by a copy of a resolution of the Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) certified
by the secretary or an assistant secretary of the Issuer authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any,
required by Section 6.01, the Trustee shall join with the Issuer in the execution of such supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise,
in which case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental indenture.
It
shall not be necessary for the consent of the Securityholders under this section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the
Trustee shall give notice thereof by (a) first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer or (b) by any other means set forth in such
supplemental indenture, setting forth in general terms the substance of such supplemental indenture. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such
supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the
Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any
such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 7.04. Documents to Be Given to Trustee. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon an Officers Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
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Section 7.05. Notation on Securities in Respect of Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by
such supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board, to any modification of
this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE 8.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The Issuer covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its
assets to any Person, unless (i) either the Issuer shall be the continuing legal entity, or the successor legal entity or the Person which acquires by sale or conveyance substantially all the assets of the Issuer (if other than the Issuer)
shall expressly assume the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and (ii) the Issuer or such successor legal entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
Section 8.02. Successor Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the successor legal entity, all in the manner described
in section 8.01, such successor legal entity shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein. Such successor legal entity may cause to be signed, and may issue either in its own name or in the
name of the Issuer prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor legal entity instead of the
Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor legal entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. Any required changes in phrasing and
form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of such
assumption following any sale or conveyance in accordance with section 8.01 and this section 8.02 (other than a conveyance by way of lease) the Issuer
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(including any successor legal entity that has been further substituted in accordance with section 8.01 and this section 8.02) shall be discharged from all obligations and covenants under this
Indenture and the Securities and may be liquidated and dissolved.
Section 8.03. Opinion of Counsel to Trustee.
The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive an Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any
such assumption, and any such liquidation or dissolution, complies with the applicable provisions of this Indenture.
ARTICLE
9.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture. (a) If at any time (i) the Issuer shall have paid or caused
to be paid the principal of and interest on all the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09)
as and when the same shall have become due and payable, or (ii) the Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) or (iii) (A) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and
payable, or are by their terms to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have
irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) in the case of any series of
Securities the payments on which may only be made in United States dollars, direct obligations of the United States of America, backed by its full faith and credit (U.S. Government Obligations), maturing as to principal and
interest at such times and in such amounts as will insure the availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have
been destroyed, lost or stolen and which shall have been replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of
maturity as the case may be, and if, in any such case, the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with respect to Securities of such series, then this Indenture shall cease to be of further effect
with respect to Securities of such series (except as to (i) rights of registration of transfer and exchange of securities of such series, and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities, (iii) rights of holders to receive payments of principal thereof and interest thereon upon the original stated due date therefor (but no upon acceleration), and remaining rights of the holders to receive
mandatory sinking fund payments, if any, (iv) the rights, obligations, indemnities and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so
deposited with the Trustee payable to all or any of them), and the Trustee, on demand of the Issuer accompanied by an Officers Certificate and an Opinion of Counsel and at the cost and expense
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of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided, that the rights of Holders of the
Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are
listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with
this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each series
unless specifically otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in
the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause 9.01(b)(i) below, the Issuer shall be
deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in clause 9.01(b)(i) below, and the provisions of this Indenture with respect to the
Securities of such series thereto shall no longer be in effect (except as to (1) rights of registration of transfer and exchange of Securities of such series and the Issuers right of optional redemption, if any, (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations, duties, indemnities and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Issuer under Section 3.02) and the Trustee, at the expense of the Issuer and any guarantor of the Securities,
shall at the Issuers or such guarantors request, execute proper instruments acknowledging the same, if
(i) with reference to this provision the Issuer or such guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations,
maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed
in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and
(2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument
to which the Issuer is a party or by which it is bound;
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(iii) the Issuer or such guarantor has delivered to the Trustee an Opinion
of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable federal income tax law, in
either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such deposit,
defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(iv) the Issuer or such guarantor has delivered to the Trustee an Officers Certificate or guarantors
Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(c) Each of the Issuer and any guarantor of the Securities shall be released from its obligations under Section 8.01 with respect to
the Securities of any Series, Outstanding, and under any guarantee in respect thereof, on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of any Series, and under a guarantee in respect thereof, the Issuer and any guarantor of the Securities may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in such Sections, whether directly or indirectly by reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other document and
such omission to comply shall not constitute an Event of Default under Section 4.01, but the remainder of this Indenture and such Securities and Coupons and the Guarantee shall be unaffected thereby. The following shall be the conditions to
application of this subsection (c) of this Section 9.01:
(i) The Issuer or such guarantor has
irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of
such series, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as
will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay
(1) the principal and interest on all Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series.
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit after giving effect thereto.
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(iii) Such covenant defeasance shall not cause the Trustee to have a
conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or such guarantor is a
party or by which either of them is bound.
(v) Such covenant defeasance shall not cause any Securities then
listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer or such guarantor shall have delivered to the Trustee an Officers Certificate or guarantors Officers Certificate, as the case may be, and Opinion of Counsel to the effect
that the Holders of the Securities of such series 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.
(vii) The Issuer
or such guarantor shall have delivered to the Trustee an Officers Certificate or guarantors Officers Certificate, as the case may be, and an Opinion of Counsel, each stating that all conditions precedent provided for relating to
the covenant defeasance contemplated by this provision have been complied with.
Section 9.02. Application by Trustee
of Funds Deposited for Payment of Securities. Subject to Section 9.04 and any subordination provisions applicable to the Securities, all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by
it to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited
with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 9.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture
with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon written demand of the Issuer, be repaid to it or paid to the Trustee and
thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 9.04.
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but
remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or
abandoned or unclaimed property law,
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be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable
escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S.
Government Obligations deposited pursuant to Section 9.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders,
Members, Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such or against any past, present or future stockholder, member, officer or director, as such, of the Issuer or of any successor, either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the Securities by the holders thereof and
as part of the consideration for the issue of the Securities.
Section 10.02. Provisions of Indenture for the Sole
Benefit of Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the
Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their
successors and of the Holders of the Securities.
Section 10.03. Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided
herein) addressed (until another address of the Issuer is filed by the Issuer with the Trustee) to Teva Pharmaceutical Industries Limited at the following address:
Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131
Israel
Attention: Chief Financial Officer
Fax:
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with copies to:
Teva Pharmaceutical Industries Limited
5 Basel Street, P.O. Box 3190
Petach Tikva 49131
Israel
Attention: General Counsel
Fax:
Willkie
Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or
mailed by first-class mail to the Trustee at 101 Barclay Street, Floor 4E, New York, NY 10286, Attention: Corporate Trust Administration Global Finance Unit.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party
elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustees understanding of such instructions shall be
deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance with such instructions notwithstanding such instructions conflict or are
inconsistent with a subsequent written instruction. Each other party agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the
Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Where this Indenture
provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the
Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other
Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
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In case, by reason of the suspension of or irregularities in regular mail service, it shall
be impracticable to mail notice to the Issuer and Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to
be a sufficient giving of such notice.
Notwithstanding anything to the contrary contained herein, as long as the Securities
are in the form of a Registered Global Security, notice to the Holders may be made electronically in accordance with procedures of the Depositary.
Section 10.05. Officers Certificates and Opinions of Counsel; Statements to be Contained Therein. Upon any application or demand by the Issuer to the Trustee to take any action under any
of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers Certificate stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of
Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with.
Each certificate
or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture 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.
Any certificate, statement or opinion of an
officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to the matters upon
which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it relates
to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer of officers of the Issuer, unless such counsel knows that the certificate,
statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based, insofar as it relates to accounting
matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous.
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Any certificate or opinion of any independent firm of public accountants filed with the
Trustee shall contain a statement that such firm is independent.
Section 10.06. Payments Due on Saturdays, Sundays
and Holidays. If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be
made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an incorporated provision), such
incorporated provision shall control.
Section 10.08. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.
Section 10.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Securities in a
Non-U.S. Currency. Unless otherwise specified in an Officers Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which
are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for
such amount at the Market Exchange Rate. For purposes of this Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York.
If such Market Exchange Rate is not available for any reason with respect to such currency, the Issuer shall use, in good faith and its reasonable discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York
as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, or such other quotations as the Issuer shall in its commercially reasonable judgment
deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of
Securities pursuant to the terms of this Indenture.
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All decisions and determinations of the Issuer regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its commercially reasonable judgment and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding
upon the Issuer and all Holders.
Section 10.12. Submission to Jurisdiction. The Issuer agrees that any legal
suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to
the laying of venue of any such proceeding, and irrevocably submits to the jurisdiction of such court in any suit, action or proceeding. The Issuer, as long as any of the Securities remain Outstanding or the parties hereto have any obligation under
this Indenture, shall have an authorized agent (the Authorized Agent) in the United States upon whom process may be served in any such legal action or proceeding. Service of process upon such agent and written notice of such
service mailed or delivered to it shall to the extent permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding. The Issuer hereby appoints Teva Pharmaceuticals USA, Inc., 1090 Horsham
Road, North Wales, PA 19454, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.
Section 10.13. Judgment Currency. The Issuer agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the Required Currency) into a currency in
which a judgment will be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency
with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance
with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and (b) its
obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)), in any
currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
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Section 10.14. Waiver of Jury Trial. EACH OF THE ISSUER AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.15. Foreign Account Tax Compliance Act. In order to comply with applicable tax laws, rules and regulations
(including directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (Applicable Law), the Issuer agrees to provide to the Trustee tax-information about holders or the
transactions contemplated hereby (including any modification to the terms of such transactions), to the extent such information is directly available to the Issuer, so that the Trustee can determine whether it has tax-related obligations under
Applicable Law and the Issuer acknowledges that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
ARTICLE 11.
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall
be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Any such notice of redemption shall also be
given to the Trustee in the manner provided in Section 10.04 hereof at least 30 days and not more than 60 days prior to the date fixed for redemption.
The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP number (if any), the date fixed for
redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case,
that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to
be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
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The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuers request, delivered to the Trustee at least five days before the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee) by the Trustee in the name and
at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other
property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the outstanding
Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that
any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.04 hereof.
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If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded
from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.
Section 11.05. Mandatory and
Optional Sinking Funds. 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 payment in excess of such
minimum amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. The date on which a sinking fund payment is to be made is herein referred to as the sinking
fund payment date.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive
credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision
contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written
statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion
to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to
such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so,
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specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be
credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to
the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to make all
the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request in writing to the Trustee specifying such lesser amount) with respect to the
Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in Section 11.02, for
redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities of any series which are (a) owned by the Issuer or an entity known by a Responsible Officer of the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer, as shown by the Security register, and not known to a Responsible Officer of the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an
Officers Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at
the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be applied to the next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
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On or before the Business Day prior to each sinking fund payment date, the Issuer shall pay
to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption
of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such
series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 4 and
held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 4.10 or the default cured on or before the 60th day preceding the sinking fund payment date in any year, such moneys shall
thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the day and year first above written.
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Very truly yours, |
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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THE BANK OF NEW YORK MELLON, as Trustee |
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By: |
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Name: |
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Title: |
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Exhibit 4.4
,
as Issuer
TEVA
PHARMACEUTICAL INDUSTRIES LIMITED,
as Guarantor
and
THE BANK OF NEW YORK MELLON, as Trustee
SENIOR INDENTURE
Dated as of
TABLE OF CONTENTS
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Page |
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ARTICLE 1 |
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DEFINITIONS |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2 |
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SECURITIES |
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Section 2.01. |
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Forms Generally |
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5 |
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Section 2.02. |
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Form of Trustees Certification of Authentication |
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6 |
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Section 2.03. |
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Amount Unlimited; Issuable in Series |
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6 |
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Section 2.04. |
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Authentication and Delivery of Securities |
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8 |
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Section 2.05. |
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Execution of Securities |
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9 |
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Section 2.06. |
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Certificate of Authorization |
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10 |
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Section 2.07. |
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Denomination and Date of Securities; Payments of Interest |
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10 |
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Section 2.08. |
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Registration, Transfer and Exchange |
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10 |
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Section 2.09. |
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Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
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12 |
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Section 2.10. |
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Cancellation of Securities |
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12 |
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Section 2.11. |
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Temporary Securities |
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13 |
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Section 2.12. |
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CUSIP Numbers |
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13 |
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Section 2.13. |
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Registered Global Securities |
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13 |
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ARTICLE 3 |
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COVENANTS OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE |
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Section 3.01. |
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Payment of Principal and Interest |
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14 |
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Section 3.02. |
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Offices for Payments, etc. |
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14 |
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Section 3.03. |
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Appointment to Fill a Vacancy in Office of Trustee |
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15 |
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Section 3.04. |
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Paying Agents |
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15 |
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Section 3.05. |
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Certificates of the Issuer and the Guarantor |
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16 |
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Section 3.06. |
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Securityholders Lists |
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16 |
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Section 3.07. |
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Reports by the Issuer |
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16 |
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Section 3.08. |
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Reports by the Trustee |
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17 |
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Section 3.09. |
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Calculation of Original Issue Discount |
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(i)
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ARTICLE 4 |
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REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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Section 4.01. |
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Event of Default; Acceleration of Maturity, Waiver of Default |
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Section 4.02. |
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Collection of Indebtedness by Trustee; Trustee May Prove Debt |
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20 |
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Section 4.03. |
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Application of Proceeds |
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22 |
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Section 4.04. |
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Suits for Enforcement |
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23 |
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Section 4.05. |
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Restoration of Rights on Abandonment of Proceeding |
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23 |
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Section 4.06. |
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Limitations on Suits by Securityholder |
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23 |
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Section 4.07. |
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Unconditional Right of Securityholders to Institute Certain Suits |
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23 |
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Section 4.08. |
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Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default |
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24 |
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Section 4.09. |
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Control by Securityholders |
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24 |
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Section 4.10. |
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Waiver of Past Defaults |
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Section 4.11. |
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Trustee to Give Notice of Default, But May Withhold in Certain Circumstances |
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25 |
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Section 4.12. |
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Right of Court to Require Filing of Undertaking to Pay Costs |
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ARTICLE 5 |
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CONCERNING THE TRUSTEE |
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Section 5.01. |
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Duties and Responsibilities of the Trustee; During Default; Prior to Default |
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Section 5.02. |
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Certain Rights of the Trustee |
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27 |
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Section 5.03. |
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Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
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29 |
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Section 5.04. |
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Trustee and Agents May Hold Securities; Collections, etc. |
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Section 5.05. |
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Moneys Held by Trustee |
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29 |
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Section 5.06. |
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Compensation and Indemnification of Trustee and its Prior Claim |
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Section 5.07. |
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Right of Trustee to Rely on Officers Certificate, etc. |
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30 |
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Section 5.08. |
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Persons Eligible for Appointment as Trustee |
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30 |
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Section 5.09. |
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Resignation and Removal; Appointment of Successor Trustee |
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30 |
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Section 5.10. |
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Acceptance of Appointment by Successor Trustee |
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31 |
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Section 5.11. |
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Merger, Conversion, Consolidation or Succession to Business of Trustee |
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32 |
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ARTICLE 6 CONCERNING THE SECURITYHOLDERS |
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Section 6.01. |
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Evidence of Action Taken by Securityholders |
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33 |
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(ii)
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Section 6.02. |
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Proof of Execution of Instruments and of Holding of Securities; Record Date |
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33 |
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Section 6.03. |
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Holders to be Treated as Owners |
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33 |
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Section 6.04. |
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Securities Owned by Issuer Deemed Not Outstanding |
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34 |
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Section 6.05. |
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Right of Revocation of Action Taken |
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34 |
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ARTICLE 7 |
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SUPPLEMENTAL INDENTURES |
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Section 7.01. |
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Supplemental Indentures without Consent of Securityholders |
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35 |
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Section 7.02. |
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Supplemental Indentures with Consent of Securityholders |
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36 |
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Section 7.03. |
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Effect of Supplemental Indenture |
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37 |
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Section 7.04. |
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Documents to Be Given to Trustee |
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37 |
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Section 7.05. |
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Notation on Securities in Respect of Supplemental Indentures |
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37 |
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ARTICLE 8 |
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CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
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Section 8.01. |
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Issuer May Consolidate, etc., on Certain Terms |
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38 |
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Section 8.02. |
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Successor Substituted |
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38 |
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Section 8.03. |
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Guarantor May Consolidate, etc., on Certain Terms |
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39 |
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Section 8.04. |
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Successor Legal Entity Substituted for the Guarantor |
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39 |
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Section 8.05. |
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Opinion of Counsel to Trustee |
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39 |
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ARTICLE 9 |
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SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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Section 9.01. |
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Satisfaction and Discharge of Indenture |
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39 |
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Section 9.02. |
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Application by Trustee of Funds Deposited for Payment of Securities |
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43 |
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Section 9.03. |
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Repayment of Moneys Held by Paying Agent |
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43 |
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Section 9.04. |
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
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43 |
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ARTICLE 10 |
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MISCELLANEOUS PROVISIONS |
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Section 10.01. |
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Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability |
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43 |
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Section 10.02. |
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Provisions of Indenture for the Sole Benefit of Parties and Securityholders |
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44 |
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Section 10.03. |
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Successors and Assigns of Issuer and Guarantor Bound by Indenture |
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44 |
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Section 10.04. |
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Notices and Demands on Issuer, Trustee and Securityholders |
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44 |
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(iii)
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Section 10.05. |
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Officers Certificates and Opinions of Counsel; Statements to be Contained Therein |
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46 |
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Section 10.06. |
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Payments Due on Saturdays, Sundays and Holidays |
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46 |
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Section 10.07. |
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Conflict of any Provision of Indenture with Trust Indenture Act of 1939 |
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47 |
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Section 10.08. |
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New York Law to Govern |
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47 |
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Section 10.09. |
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Counterparts |
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47 |
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Section 10.10. |
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Effect of Headings |
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47 |
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Section 10.11. |
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Securities in a Non-U.S. Currency |
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47 |
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Section 10.12. |
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Submission to Jurisdiction |
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48 |
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Section 10.13. |
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Judgment Currency |
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48 |
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Section 10.14. |
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Waiver of Jury Trial |
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48 |
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Section 10.15. |
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Foreign Account Tax Compliance Act |
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49 |
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ARTICLE 11 |
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REDEMPTION OF SECURITIES AND SINKING FUNDS |
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Section 11.01. |
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Applicability of Article |
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49 |
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Section 11.02. |
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Notice of Redemption; Partial Redemptions |
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49 |
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Section 11.03. |
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Payment of Securities Called for Redemption |
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50 |
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Section 11.04. |
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Exclusion of Certain Securities from Eligibility for Selection for Redemption |
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51 |
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Section 11.05. |
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Mandatory and Optional Sinking Funds |
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51 |
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ARTICLE 12 |
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GUARANTEE |
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Section 12.01. |
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The Guarantee |
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53 |
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Section 12.02. |
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Net Payments |
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53 |
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Section 12.03. |
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Guarantee Unconditional, etc. |
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54 |
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Section 12.04. |
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Reinstatement |
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55 |
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Section 12.05. |
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Subrogation |
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55 |
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Section 12.06. |
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Assumption by Guarantor |
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55 |
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(iv)
THIS INDENTURE, dated as of
, among ,
a (the Issuer), Teva Pharmaceutical Industries Limited, a corporation incorporated under the laws of Israel
(the Guarantor), and The Bank of New York Mellon, a New York banking corporation (the Trustee),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the Securities) up to such principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
WHEREAS, for value
received, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Guarantee provided for herein, and all things necessary to make this Indenture a valid indenture and legally binding
agreement of the Guarantor according to its terms have been done; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and legally binding agreement of the Issuer according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer, the Guarantor and
the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided herein or in any indenture
supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term generally accepted accounting principles means such accounting
principles as are generally accepted at the time of any computation. The words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Authorized Agent shall have the meaning set forth in Section 10.12.
Bearer Security means any Security other than a Registered Security.
Board means the board of directors or the board of [managers / managing directors or supervisory directors] of the
Issuer, or any other body or Person authorized by the organizational documents or by the members of the Issuer to act for it.
Board Resolution means one or more resolutions, certified by the secretary of the Board to have been duly adopted or
consented to by the Board and to be in full force and effect, and delivered to the Trustee.
Business Day
means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law or
regulation to close.
Commission means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
Corporate Trust Office means the office of the Trustee located
in The City of New York at which at any particular time its corporate trust business shall be administered (which at the date of this Indenture is located at 101 Barclay Street, 4th Floor East, New York, New York 10286), Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Issuer).
Depositary means, with respect to
the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter Depositary shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, Depositary as used with
respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.
Dollar means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Event of Default means any event or condition specified as such in Section 4.01.
2
Guarantee means the unconditional guarantee of the payment of the
principal of, any premium or interest on, and any additional amounts with respect to the Securities by the Guarantor, as more fully set forth in Article 12.
Guarantor means the Person named as the Guarantor in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Guarantor shall mean such successor Person.
Guarantors Board of Directors means the Board of Directors of the Guarantor or any committee of such Board duly
authorized to act hereunder.
Guarantors Officers Certificate means a certificate
(i) signed by any two officers of the Guarantor duly authorized to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with the requirements of Section 314 of the Trust Indenture Act of
1939.
Holder, Holder of Securities, Securityholder or other similar
terms mean the registered holder of any Security.
Indenture means this instrument as originally executed
and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
Interest means, when used with respect to non-interest bearing Securities, interest payable after maturity.
Issuer means (except as otherwise provided in Article 8)
, a
organized under the laws of , and, subject to Article 8, its successors and assigns.
Judgment Currency shall have the meaning set forth in Section 10.13.
New York Banking Day shall have the meaning set forth in Section 10.13.
Non-U.S. Currency means a currency issued by the government of a country other than the United States (or any currency
unit comprised of any such currencies).
Officers Certificate means a certificate (i) signed by
any two officers of the Issuer (which may include any managing director or supervisory director) authorized by the Board to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939.
Opinion of Counsel means an opinion in writing reasonably satisfactory
to the Trustee signed by legal counsel to the Issuer or the Guarantor who may be an employee of or counsel to the Issuer or the Guarantor. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 10.05, if and to the extent required hereby.
3
Original Issue Date of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security means any Security that provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
Outstanding, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as
of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions
thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer or the Guarantor) or shall have been set aside, segregated and held in
trust by the Issuer or the Guarantor for the holders of such Securities (if the Issuer shall act as its own, or authorize the Guarantor to act as, paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with respect to any
such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue 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 4.01.
Person means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Principal whenever used with reference to the Securities or any Security or any
portion thereof, shall be deemed to include and premium, if any.
Registered Global Security
means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.03, and bearing the legend prescribed by the applicable supplemental indenture.
4
Registered Security means any Security registered on the Security
register of the Issuer.
Required Currency shall have the meaning set forth in Section 10.13.
Responsible Officer, when used with respect to the Trustee, means any officer of the Trustee, including
any vice president, any trust officer, any senior associate 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 such officers knowledge of and familiarity with that particular subject and who shall have direct responsibility for the administration of this Indenture.
Security or Securities has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
Trustee means the Person identified as Trustee in the first paragraph hereof and, subject to the
provisions of Article 5, shall also include any successor trustee.
Trust Indenture Act of 1939
(except as otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
U.S. Government Obligations shall have the meaning set forth in Section 9.01.
vice president when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of
vice president.
Yield to Maturity means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally. The Securities of each series shall be substantially in such form (not inconsistent with this
Indenture) as shall be established by or pursuant to a resolution of the Board or in one or more indentures supplemental hereto, in each case with such appropriate insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to comply with any law or with any rules or regulations pursuant
thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution of the Securities.
5
The definitive Securities shall be printed or lithographed on security printed paper or may
be produced in any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form of Trustees Certification of Authentication. The Trustees certificate of authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
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The Bank of New York Mellon, as Trustee |
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By: |
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Authorized Signatory |
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Date: |
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Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or
more series and unless provided for otherwise in an indenture supplemental hereto, each such series shall rank equally and pari passu with all other unsecured and unsubordinated debt of the Issuer. There shall be established in or pursuant to
a resolution of the Board and set forth in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the designation of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) if other than Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to,
any Non-U.S. Currency);
(d) the date or dates on which the principal of the Securities of the series is payable;
(e) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
6
(f) the place or places where the principal of and any interest on Securities of the series
shall be payable (if other than as provided in Section 3.02);
(g) the price or prices at which, the period or periods
within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption
sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
(i) if other than denominations of $1,000 and any multiple thereof,
the denominations in which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of
the principal of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the
Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the
manner in which such amounts shall be determined;
(n) if the Holders of the Securities of the series may convert or exchange
the Securities of the series into or for securities of the Issuer or of other entities or other property (or the cash value thereof), the specific terms of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Bearer Securities (with or without coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the
payment of interest thereon and, if other than as provided herein, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
7
(p) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a Person who is not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such
additional amounts;
(q) if the Securities of such series are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(r) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the
Securities of such series;
(s) any applicable United States federal income tax and Israel income tax provisions, including,
but not limited to: whether and under what circumstances the Issuer will pay additional amounts on Securities for any tax, assessment or governmental charge withheld or deducted and, if so, whether it will have the option to redeem those Securities
rather than pay the additional amounts; tax considerations applicable to any discounted Securities or to Securities issued at par that are treated as having been issued at a discount for United States federal income tax purposes; and tax
considerations applicable to any Securities denominated and payable in foreign currencies;
(t) whether certain payments on
the Securities will be guaranteed under a financial insurance guaranty policy and the terms of that guaranty;
(u) any
applicable selling restrictions;
(v) any other events of default, modifications or elimination of any acceleration rights, or
covenants with respect to the Securities of such series and any terms required by or advisable under applicable laws or regulations, including laws and regulations relating attributes required for the Securities to be afforded certain capital
treatment for bank regulatory or other purposes; and
(w) any other terms of the series.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or
pursuant to such resolution of the Board or in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto.
Section 2.04.
Authentication and Delivery of Securities. At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the
Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, signed by any two officers of the Issuer authorized by the Board to execute any such order, without any further action by the Issuer. In
authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board authorizing the action taken pursuant to the resolution or resolutions
delivered under clause 2.04(b) below;
8
(b) a copy of any resolution or resolutions of the Board relating to such series, in each
case certified by the Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any;
(d) an Officers Certificate setting forth the form and terms of the Securities as required pursuant to Sections 2.01
and 2.03, respectively and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance
with Section 10.05,
(i) to the effect that the form or forms and terms of such Securities have been
established by or pursuant to a resolution of the Board or by a supplemental indenture as permitted by Sections 2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) to the effect that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer; and
(iii) covering such other matters as the Trustee may reasonably request.
The
Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall
determine that such action would expose the Trustee to personal liability to existing Holders.
Section 2.05.
Execution of Securities. The Securities shall be signed on behalf of the Issuer by any two officers of the Issuer authorized by the Board to execute such Securities, which Securities may, but need not, be attested. Such signatures may be the
manual or facsimile signatures of the present or any future such officers. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be
such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security
had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the
execution and delivery of this Indenture any such person was not such an officer.
9
Section 2.06. Certificate of Authorization. Only such Securities as shall bear
thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory
for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the
benefits of this Indenture.
Section 2.07. Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the
dates, in each case, which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of
any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer and the Guarantor shall default in the payment of the interest due on such
interest payment date for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not
less than five Business Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer or the Guarantor to the holders of Securities not less than 15 days preceding such subsequent
record date. The term record date as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series,
or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the 15th day of the next preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such
calendar month, in either case whether or not such record date is a Business Day.
Section 2.08. Registration,
Transfer and Exchange. The Issuer will keep or cause to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may
prescribe, it will register, and will register the transfer of, Securities as in this Article provided. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable
time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
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Upon due presentation for registration of transfer of any Security of any series at any such
office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series
in authorized denominations for a like aggregate principal amount.
Any Security or Securities of any series may be exchanged
for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the
purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled
to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer,
exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the
holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next
preceding the first mailing of notice of redemption of Securities of such series to be redeemed, (b) any Securities selected, called or being called for redemption except, in the case of any Security where notice has been given that such
Security is to be redeemed in part, the portion thereof not so to be redeemed, or (c) any Securities of any series between a record date and the next succeeding payment date.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
The Trustee
shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any
transfers between or among Depositary Participants or beneficial owners of interests in any Registered Global Security) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do
so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
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Neither the Trustee nor any agent shall have any responsibility for any actions taken or not
taken by the Depositary.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any
temporary or definitive Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new
Security of the same series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the
applicant for a substitute Security shall furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each
of them harmless and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof in the case of mutilation or defacement shall surrender the Security to
the Trustee or such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any Security which has matured or is
about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee such security or indemnity as any of them
may require to save each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee evidence to their
satisfaction of the destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of
any series issued pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer and the Guarantor, 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 (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and
all other Securities of such series duly authenticated and delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the
replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the
replacement or payment of negotiable instruments or other securities without their surrender.
Section 2.10.
Cancellation of Securities. All Securities surrendered for payment, redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of
the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if surrendered to the Trustee, shall be
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cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held
by it in accordance with its procedures for the disposition of cancelled Securities and deliver a certificate of disposition to the Issuer upon request. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of
the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series unless otherwise established pursuant to Section 2.03.
Section 2.12. CUSIP
Numbers. The Issuer 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 and other notices to the Holders as a convenience to
Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP
numbers.
Section 2.13. Registered Global Securities. None of the Issuer, the Guarantor, the Trustee or any Agent
shall have any responsibility or obligation to any beneficial owner of an interest in a Registered Global Security, any members of, or a participant in, the Depositary (Agent Members) or other Person with respect to the accuracy
of the records of the Depositary or its nominee or any participant or Agent Member thereof, with respect to any ownership interest in a Registered Global Security or with respect to the delivery to any participant, Agent Member, beneficial owner or
other Person (other than the Depositary) of any notice or the payment of any amount or delivery of any Registered Global Security (or other security or property) under or with respect to such Registered Global Securities. All notices and
communications to be given to the Holders and all payments to be made to Holders in respect of
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the Registered Global Securities shall be given or made only to or upon the order of the registered Holders. The rights of beneficial owners in any Registered Global Security shall be exercised
only through the Depositary subject to the applicable rules and procedures of the Depositary. The Issuer, the Guarantor, the Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with
respect to its Agent Members, participants and any beneficial owners.
ARTICLE 3
COVENANTS OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such
Securities. Subject to any other provisions that may be established pursuant to Section 2.03, the interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon
the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the
payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Section 3.02. Offices for Payments, etc. So long as any of the Securities remain outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York, the following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for exchange
as in this Indenture or any supplemental indenture provided and (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. The Issuer will give to the Trustee written notice of the
location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of the Trustee, as the office to be
maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be
made and notices may be served at the Corporate Trust Office.
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The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.03 and where the Securities of that series may be presented for
registration of transfer as provided in this Indenture, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner
relieve the Issuer of its obligation to maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer, the Guarantor or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by the Guarantor or any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustees written request at any time during the continuance of the failure referred to in clause 3.04(b) above.
The Issuer will, on the Business Day prior to each due date of the principal of or interest on the Securities of such series,
deposit with the paying agent a sum in immediately available funds in United States dollars sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of
any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities of any
Series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such
principal or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
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Anything in this section to the contrary notwithstanding, the Issuer may at any time, for
the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any
paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to
the provisions of Sections 9.03 and 9.04.
For the avoidance of doubt, any paying agent hereunder shall comply with applicable
backup withholding tax and information reporting requirements under the U.S. Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations promulgated thereunder with respect to payments made under the Securities of any series
(including, to the extent required, the collection of Internal Revenue Service Forms W-8 and W-9 and the filing of U.S. Internal Revenue Service Forms 1099 and 1096).
Section 3.05. Certificates of the Issuer and the Guarantor. The Issuer and the Guarantor will each furnish to the Trustee within 120 days after the end of each fiscal year of the Issuer or the
Guarantor, as the case may be, commencing on , an Officers Certificate of the Issuer or the Guarantor, as the case may be,
as to the signers knowledge of the Issuers or the Guarantors compliance with all conditions and covenants under the Indenture (such compliance to be determined without regard to any period of grace or requirement of notice provided
under the Indenture). In the event an Officer of the Issuer comes to have actual knowledge of an Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, regardless of the date, the Issuer
shall deliver an Officers Certificate to the Trustee specifying such Default and the nature and status thereof.
Section 3.06. Securityholders Lists. If and so long as the Trustee shall not be the Security registrar for the Securities of
any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of the Securities of such series pursuant to Section 312 of the
Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to
Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more than 15 days prior to
the time such information is furnished.
Section 3.07. Reports by the Issuer. Each of the Issuer and the Guarantor
covenants to file with the Trustee, within 15 days after the Issuer or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the
Issuer or the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934. Reports, information and documents filed by the Issuer or the Guarantor with the Commission
via the EDGAR system will be deemed filed with the Trustee for purposes of this Section 3.07 as of the time that such reports, information and documents are filed via EDGAR. Delivery of such reports, information and documents to the Trustee is
for informational purposes
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only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the
Issuers or the Guarantors compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates or Guarantors Officers Certificates, as applicable).
The Trustee shall have no obligation to determine if and when the reports, information and documents of the Issuer or the Guarantor are
filed with the Commission via the EDGAR system and available on the Commissions EDGAR website. If the Guarantor ceases to be a reporting company with the Commission, it shall provide the Trustee with prompt written notification at that time
and shall provide the Trustee with such reports, information and documents as set forth in this Section 3.07.
Section 3.08. Reports by the Trustee. Any Trustees report required under Section 313(a) of the Trust Indenture Act
of 1939 shall be transmitted on or before July 15 in each year following the date hereof, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto.
Section 3.09. Calculation of Original Issue Discount. The Issuer shall prepare and provide to the
Trustee on a timely basis any form required to be submitted by the Trustee on behalf of the Issuer with the Internal Revenue Service and the Holders of Securities relating to original issue discount, including, without limitation, Form 1099-OID or
any successor form.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default; Acceleration of Maturity, Waiver of Default. Unless otherwise established in accordance with
Section 2.03 or by any applicable supplemental indenture, Event of Default with respect to Securities of any series wherever used herein means each one of the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of premium or principal in respect of the Securities;
(b) default for more than 30 days in the payment of interest in respect of the Securities; or
(c) the failure to perform or observe any other obligations under the Securities which failure continues for the period of 60 days next
following service on the Issuer and the Guarantor of notice requiring the same to be remedied; or
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(d) the entry by a court having jurisdiction in the premises of:
(i) a decree or order for relief in respect of the Issuer or the Guarantor in an involuntary case or proceeding under any
applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; or
(ii) a decree
or order adjudging the Issuer or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or the Guarantor under any applicable
U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by the Issuer or the Guarantor of a voluntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer or the
Guarantor in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or the
Guarantor, or the filing by the Issuer or the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law, or the consent by the Issuer or the Guarantor to the filing of such petition
or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or the making by the Issuer
or the Guarantor of an assignment for the benefit of creditors, or the admission by the Issuer or the Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or the
Guarantor expressly in furtherance of any such action; or
(f) any other Event of Default provided in the supplemental
indenture or resolution of the Board under which such series of Securities is issued or in the form of Security for such series.
Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or 4.01(f) above (if the Event of Default under clauses 4.01(c)
or 4.01(f) is with respect to less than all series of Securities then Outstanding) occurs and is continuing, then, and in each and every such case, except for any series the principal of which shall have already become due and payable, either the
Trustee or the holders of not less than 25% in aggregate principal amount of the Securities of all series affected thereby then Outstanding hereunder (treated as one class) by notice in writing to the Issuer and the Guarantor (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all
Securities of such affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. Unless otherwise set forth in any applicable
supplemental indenture, if an Event of Default described in clauses 4.01(c) or 4.01(f) (if the Event of Default under clauses 4.01(c) or
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4.01(f) is with respect to all series of Securities at the time Outstanding) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the then Outstanding Securities hereunder (treated as one class) for which any applicable supplemental indenture does not
prevent acceleration under the relevant circumstances, by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities are Original Issue Discount
Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become
immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is continuing, then the principal and accrued and unpaid interest, and
premium if any, with respect to any Securities then Outstanding 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.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable, and before any
judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments of interest
upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall
be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and
all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the
holders of a majority in aggregate principal amount of all the Securities of each such series (or of all the Securities, as the case may be) then Outstanding (in each case treated as one class), by written notice to the Issuer, the Guarantor and the
Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to
or shall affect any subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture,
if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall be
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deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof
as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. Each of the Issuer and the Guarantor covenants
that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or
(b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer or the Guarantor, as the case may be, will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until
such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or not the principal of and interest on the Securities of such series be overdue.
In case the Issuer or the Guarantor shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against the Issuer or the Guarantor or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or the Guarantor or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings
relative to the Issuer, the Guarantor or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee
in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or the Guarantor or its property or such other obligor, or in case of any other comparable judicial
proceedings relative to the Issuer, the Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of any
Securities shall then be due and payable as therein expressed or by declaration or
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otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or
otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of
any series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all
expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer, the
Guarantor or other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor,
(b) unless prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization,
liquidation or other bankruptcy or insolvency proceedings or person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or other property payable or deliverable on any such claims, and to distribute all amounts received
with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the Securityholders to make payments to the Trustee,
and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except in the event of a determination of its own negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in
any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights
of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and
any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.
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In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any
holders of such Securities parties to any such proceedings.
Section 4.03. Application of Proceeds. Any moneys
collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon
presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities
of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses
applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except in the event of a determination of its own negligence or bad faith;
SECOND: In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the
Securities of such series in default in the order of the maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall
be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be
insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to
Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such
principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or as a court of competent jurisdiction may direct.
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Section 4.04. Suits for Enforcement. In case an Event of Default has occurred,
has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any
of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce
any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of
Rights on Abandonment of Proceeding. In case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as
though no such proceedings had been taken.
Section 4.06. Limitations on Suits by Securityholder. No holder of any
Security of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any
right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any
Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in such Security, or to institute 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.
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Section 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of
Default. Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the
Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee
or by the Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in
this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 4.10. Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting as a single class) may on
behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 4.01 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, the Guarantor, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
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Upon any such waiver, such default shall cease to exist and be deemed to have been cured and
not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred 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 4.11. Trustee to Give Notice of Default, But May Withhold in Certain
Circumstances. The Trustee shall give to the Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such
series, such notice to be transmitted within 90 days after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term default or defaults for the purposes of
this section being hereby defined to mean any event or condition which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any
of the Securities of such series, or in the payment of any sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit
relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating
to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the
enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series
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and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such duties as are specifically set forth
in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(b) the Trustee shall not be
liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the
direction of the holders pursuant to Section 4.09 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.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such
liability is not reasonably assured to it.
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The provisions of this Section 5.01 are in furtherance of and subject to Sections 315
and 316 of the Trust Indenture Act of 1939.
Section 5.02. Certain Rights of the Trustee. In furtherance of and
subject to the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall
be protected in acting or refraining from acting upon any resolution, Officers Certificate, Guarantors Officers Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer or the Guarantor mentioned herein shall be sufficiently evidenced by an Officers Certificate or a Guarantors Officers
Certificate, as the case may be, (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board or of the Guarantors Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer or the Guarantor, as the case may be;
(c) the Trustee may consult
with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) 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, consent, order,
approval, appraisal, bond, debenture, note, coupon, security, or other paper or document unless requested in writing so to do by the holders of not less than a majority in aggregate principal amount of the Securities of all series affected then
outstanding; provided that, if the payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the
Trustee by the security afforded to it by the terms of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall
be paid by the Issuer or, if paid by the Trustee or any predecessor trustee, shall be repaid by the Issuer promptly upon demand;
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(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers Certificate or a
Guarantors Officers Certificate, as the case may be;
(i) the Trustee shall not be deemed to have notice of any
Event of Default or an event which, with notice or lapse of time or both, would constitute an Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee
may request that the Issuer or the Guarantor deliver an Officers Certificate or a Guarantors Officers Certificate, as the case may be, setting forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers Certificate or Guarantors Officers Certificate, as the case may be, may be signed by any person authorized to sign an Officers Certificate or a Guarantors
Officers Certificate, as the case may be, including any person specified as so authorized in any such certificate previously delivered and not superseded;
(l) in no event shall the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of
profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(m) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its
control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities,
communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under
the circumstances; and
(n) neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or
inquire as to compliance by the Issuer, the Guarantor or the Securityholders with or with respect to any securities or tax laws (including but not limited to
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any United States federal or state or other securities or tax laws), or, except as specifically provided herein, obtain documentation on any transfers or exchanges of the Securities of any
series. Nothing in this provision shall be deemed to limit the Trustees duty to comply with any obligations it may have pursuant to applicable law.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustees
certificates of authentication, shall be taken as the statements of the Issuer or the Guarantor, as the case may be, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Issuer, the Guarantor
or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer or the Guarantor and receive,
collect, hold and retain collections from the Issuer or the Guarantor with the same rights it would have if it were not the Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section 9.04 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory provisions of law. All such moneys shall remain uninvested and neither the Trustee nor any agent of the
Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
Section 5.06.
Compensation and Indemnification of Trustee and its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, compensation as the Issuer and the Trustee shall from time to time
agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of
all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance shall be determined to have been caused by its own negligence or bad faith. The Issuer also covenants to indemnify the Trustee
and each predecessor Trustee and their agents, officers, directors and employees for, and to hold each of them harmless against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture
or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises, except to the extent such loss, liability or expense shall be
determined to have been caused by the negligence or bad faith of the Trustee or such predecessor Trustee or their respective agents, officers, directors and employees. The obligations of the Issuer under this section to compensate and indemnify the
Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances
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shall constitute additional indebtedness hereunder and shall survive the payment in full of the Securities issued hereunder, the resignation or removal of the Trustee, or the satisfaction and
discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular
Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 4.01(d) or Section 4.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable federal or state bankruptcy, insolvency or other similar law.
Section 5.07. Right of Trustee to Rely on Officers Certificate, etc. Subject to Sections 5.01 and 5.02, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder, such matter may, in the absence of negligence or
bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered to the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be
full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all times be a corporation organized and doing business under the laws
of the United States of America or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such
corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or
more or all series of Securities by giving written notice of resignation to the Issuer and by mailing notice thereof by first class mail to Holders of the applicable series of Securities at their last addresses as they shall appear on the Security
register. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series by written instrument in duplicate, executed by authority of the Board, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing
of such notice of resignation, the resigning trustee at the Issuers expense may petition any court of competent jurisdiction for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
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(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed
by order of the Board of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the Securities of each series at the time outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so appointed and to the Issuer the evidence
provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal
of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09 shall become effective upon acceptance of appointment by the successor
trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment by Successor Trustee. Any
successor trustee appointed as provided in Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor
trustee with respect to all or any applicable series shall
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become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its
predecessor hereunder, with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to
act shall, subject to Section 9.04, pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and
obligations. Upon request of any such successor trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to
act shall, nevertheless, retain a prior claim upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor trustee with respect to the Securities of any applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any
of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which
such successor trustee is acting as trustee at their last addresses as they shall appear in the Security register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In
case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of
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the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt
the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date. Subject to Sections 5.01 and 5.02,
the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than
five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or
revoke such vote or consent.
Section 6.03. Holders to be Treated as Owners. The Issuer, the Guarantor, the
Trustee and any agent of the Issuer, the Guarantor or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security
and for all other purposes; and none of the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order,
shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
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Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining
whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on
the Securities with respect to which such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect
to which such determination is being made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such
direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in
accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of
any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers 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 6.05. Right of Revocation of Action
Taken. At any time prior to (but not after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as
the case may be, specified in this Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any
Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or
not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities affected by such action.
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ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures without
Consent of Securityholders. The Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the
Issuer authorized thereby), and the Guarantor, when authorized by a resolution of the Guarantors Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another legal entity to the Issuer
or the Guarantor, as the case may be, or successive successions, and the assumption by the successor legal entity of the covenants, agreements and obligations of the Issuer or the Guarantor, as the case may be, pursuant to Article 8;
(c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer,
the Guarantor and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer
or the Guarantor may deem necessary or desirable and which shall not adversely affect the interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 2.03; and
(f) to evidence the assumption by the Guarantor of all of the rights and obligations of the Issuer hereunder with respect to a series of Securities and under the Securities of such series and the release
of the Issuer from its liabilities hereunder and under such Securities as obligor on the Securities of such series, all as provided in Section 12.06 hereof.
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The Trustee is hereby authorized to join with the Issuer and the Guarantor in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the Trustee shall
not be obligated to enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 7.02.
Section 7.02. Supplemental Indentures with Consent of Securityholders. With the
consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series affected by such supplemental indenture (voting as one class), the Issuer,
when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby), and the
Guarantor, when authorized by a resolution of the Guarantors Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental
indenture shall (a) (i) extend the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or extend the time of payment of interest thereon, (iv) reduce any amount payable on
redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with the terms
thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or in accordance with the terms thereof, (vii) reduce the amount of the principal of an Original Issue Discount
Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy pursuant to Section 4.02, (viii) modify or amend any provisions relating to the
conversion or exchange of the Securities for securities of the Issuer or the Guarantor or of other entities or other property (or the cash value thereof), including the determination of the amount of securities or other property (or cash) into which
the Securities shall be converted or exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the Securities or otherwise in accordance with the terms thereof, or (ix) alter the provisions of
Section 10.11 or Section 10.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder, in each case
without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the consent of the
Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed
not to affect the rights under this Indenture of the holders of Securities of any other series.
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Upon the request of the Issuer, accompanied by a copy of a resolution of the Board (which
resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) certified by the secretary or an assistant secretary of the Issuer
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the
Issuer and the Guarantor in the execution of such supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent
of the Securityholders under this section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of
this Section, the Trustee shall give notice thereof by (a) first class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer or (b) by any other means
set forth in such supplemental indenture, setting forth in general terms the substance of such supplemental indenture. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution
of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Issuer, the Guarantor and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all
the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 7.04. Documents to Be Given to Trustee. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon, an Officers Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 7.05. Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the
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Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities
of any series so modified as to conform, in the opinion of the Trustee and the Board, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The Issuer covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its
assets to any Person, unless (i) either the Issuer shall be the continuing legal entity, or the successor legal entity or the Person which acquires by sale or conveyance substantially all the assets of the Issuer (if other than the Issuer)
shall expressly assume the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be
performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and (ii) the Issuer or such successor legal entity, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
Section 8.02. Successor Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the successor legal entity, all in the manner described
in section 8.01, such successor legal entity shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein. Such successor legal entity may cause to be signed, and may issue either in its own name or in the
name of the Issuer prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor legal entity instead of the
Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the
Trustee for authentication, and any Securities which such successor legal entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and
benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. Any required changes in phrasing and
form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of such
assumption following any sale or conveyance in accordance with section 8.01 and this section 8.02 (other than a conveyance by way of lease) the Issuer (including any successor legal entity that has been further substituted in accordance with section
8.01 and this section 8.02) shall be discharged from all obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.
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Section 8.03. Guarantor May Consolidate, etc., on Certain Terms. The Guarantor
covenants that it will not merge or consolidate with any other Person or sell, lease or convey all or substantially all of its assets to any other Person, unless (i) either the Guarantor shall be the continuing legal entity, or the successor
legal entity or the Person which acquires by sale, lease or conveyance substantially all the assets of the Guarantor (if other than the Guarantor) shall expressly assume the due and punctual payment of the principal of and interest on all the
Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Guarantor, by supplemental indenture satisfactory to the Trustee, executed and delivered to
the Trustee by such successor legal entity, and (ii) the Guarantor, such Person or such successor legal entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale, lease or conveyance, be in default in
the performance of any such covenant or condition.
Section 8.04. Successor Legal Entity Substituted for the
Guarantor. In case of any such consolidation, merger, sale, lease or conveyance, and following such an assumption by the successor legal entity, all in the manner described in section 8.03, such successor legal entity shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named herein and any required changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of such assumption following any sale or conveyance in accordance with section 8.03 and this section 8.04 (other than a
conveyance by way of lease) the Guarantor (including any successor legal entity that has been further substituted in accordance with section 8.03 and this section 8.04) shall be discharged from all obligations and covenants under this Indenture and
the Securities and may be liquidated and dissolved.
Section 8.05. Opinion of Counsel to Trustee. The Trustee,
subject to the provisions of Sections 5.01 and 5.02, shall receive an Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption,
and any such liquidation or dissolution, complies with the applicable provisions of this Indenture.
ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture. (a) If at any time (i) the Issuer or the Guarantor shall have paid or caused to be paid the principal of and interest on all
the Securities of any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and
payable, or (ii) the Issuer or the Guarantor shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen
and which shall have been replaced or paid as provided in Section 2.09) or (iii) (A) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the
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giving of notice of redemption, and (B) the Issuer or the Guarantor shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds the entire amount in cash
(other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) in the case of any series of Securities the payments on which may only be made in United States dollars, direct obligations of the
United States of America, backed by its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at such times and in such amounts as will insure the availability of cash, or a combination
thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in
Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity as the case may be, and if, in any such case, the Issuer or the Guarantor shall
also pay or cause to be paid all other sums payable hereunder by the Issuer or the Guarantor with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange of securities of such series, and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights
of holders to receive payments of principal thereof and interest thereon upon the original stated due date therefor (but no upon acceleration), and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, indemnities and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them),
and the Trustee, on demand of the Issuer or the Guarantor accompanied by an Officers Certificate (or Guarantors Officers Certificate respectively) and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute
proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided, that the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities
held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution,
Officers Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities the exact amounts
(including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause 9.01(b)(i) below, the Issuer and the Guarantor shall be deemed to have paid and discharged the
entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in clause 9.01(b)(i) below, and the provisions of this Indenture with respect to the Securities of such series thereto shall no
longer be in effect (except as to (1) rights of registration of transfer and exchange of Securities of such series and the Issuers right of optional redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or
stolen Securities, (3) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive
mandatory
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sinking fund payments, if any, (4) the rights, obligations, duties, indemnities and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series as
beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Issuer under Section 3.02) and the Trustee, at the expense of the Issuer or the Guarantor, shall
at the Issuers or the Guarantors request, execute proper instruments acknowledging the same, if
(i) with reference to this provision the Issuer or the Guarantor has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and payable and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
(ii) such deposit will not result in a breach or violation of, or constitute a
default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(iii) the
Issuer or the Guarantor has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(iv) the Issuer or the Guarantor has delivered to the Trustee an
Officers Certificate or Guarantors Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(c) Each of the Issuer and the Guarantor shall be released from its obligations under Section 8.01 with respect to the
Securities of any Series, Outstanding, and under any guarantee in respect thereof, on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this purpose, such covenant defeasance
means that, with respect to the Outstanding Securities of any Series, and under a guarantee in respect thereof, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set
forth in such Sections, whether directly or indirectly by
41
reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other document and such omission to comply shall
not constitute an Event of Default under Section 4.01, but the remainder of this Indenture and such Securities and Coupons and the Guarantee shall be unaffected thereby. The following shall be the conditions to application of this subsection
(c) of this Section 9.01:
(i) The Issuer or the Guarantor has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the Securities of such series, (A) cash in an
amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such amounts as will insure the availability of
cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on
all Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series.
(ii) No Event of Default or event which with notice or lapse of time or both would become an Event of Default
with respect to the Securities shall have occurred and be continuing on the date of such deposit, after giving effect thereto.
(iii) Such covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer or the Guarantor is a party or by which either of them is bound.
(v) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer or the Guarantor shall have delivered to the Trustee an Officers Certificate or Guarantors
Officers Certificate, as the case may be, and Opinion of Counsel to the effect that the Holders of the Securities of such series 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.
(vii) The Issuer or the Guarantor shall have delivered to the Trustee an Officers Certificate or Guarantors
Officers Certificate, as the case may be, and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
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Section 9.02. Application by Trustee of Funds Deposited for Payment of
Securities. Subject to Section 9.04 and any subordination provisions applicable to the Securities; all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it to the payment, either directly
or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with the Trustee, of all sums due
and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 9.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon written demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
Section 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer
for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01 or the principal
and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability. No
recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future
stockholder (except in a stockholders corporate capacity as Guarantor), member, officer or director, as such, of the Issuer or the Guarantor or of any successor, either directly or through the Issuer or the Guarantor, as the case may be, or
any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the acceptance of the
Securities by the holders thereof and as part of the consideration for the issue of the Securities.
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Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and
Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors and the Holders of the Securities,
any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and of the Holders of the
Securities.
Section 10.03. Successors and Assigns of Issuer and Guarantor Bound by Indenture. All the covenants,
stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not. All the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 10.04.
Notices and Demands on Issuer, Trustee and Securityholders. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer or the
Guarantor may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address is filed with the Trustee) as follows:
If to the Issuer:
[
]
c/o Teva Pharmaceuticals USA, Inc.
1090 Horsham Road
North Wales, PA 19454
Attention: Deborah A. Griffin
Fax: (215) 591-8807
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
If to the Guarantor:
Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131
Israel
Attention: Eyal Desheh
Fax: 972-3-914-8700
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with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
Any notice, direction, request or demand by the Issuer, the Guarantor or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered
in person or mailed by first-class mail to the Trustee at 101 Barclay Street, Floor 4E, New York, NY 10286, Attention: Corporate Trust Administration Global Finance Unit.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such
instructions, the Trustees understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. Each other party agrees to assume all risks arising out of the use of such electronic methods to submit instructions and
directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
Where this Indenture provides for notice to Holders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each
Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to Holders is given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice may be waived in writing by the person entitled to receive such notice, either before or after the event,
and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the
Issuer, the Guarantor or Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of
such notice.
Notwithstanding anything to the contrary contained herein, as long as the Securities are in the form of a
Registered Global Security, notice to the Holders may be made electronically in accordance with procedures of the Depositary.
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Section 10.05. Officers Certificates and Opinions of Counsel; Statements to be
Contained Therein. Upon any application or demand by the Issuer or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Issuer or the Guarantor, as the case may be, shall furnish to the Trustee an
Officers Certificate or Guarantors Officers Certificate, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent have been complied with.
Each certificate or
opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture 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.
Any certificate, statement or opinion of an
officer of the Issuer or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect to
the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer or the Guarantor, as the case may be, upon the certificate, statement or opinion of or representations by an officer of officers of the
Issuer or the Guarantor, as the case may be, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or
opinion of an officer of the Issuer or the Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer,
unless such officer or counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of
public accountants filed with the Trustee shall contain a statement that such firm is independent.
Section 10.06.
Payments Due on Saturdays, Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment
of interest or principal need not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
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Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of
1939. If and to the extent that any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an
incorporated provision), such incorporated provision shall control.
Section 10.08. New York Law to
Govern. This Indenture and each Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.
Section 10.10. Effect of
Headings. The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Securities in a Non-U.S. Currency. Unless otherwise specified in an Officers Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a
particular series of Securities, whenever for purposes of this Indenture any action may be taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the
purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City
for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Issuer shall use, in good faith and its reasonable discretion
and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in
question, or such other quotations as the Issuer shall in its commercially reasonable judgment deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series
denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and determinations of the Issuer regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its commercially reasonable judgment
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders.
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Section 10.12. Submission to Jurisdiction. Each of the Issuer and the Guarantor
agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now
or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the jurisdiction of such court in any suit, action or proceeding. Each of the Issuer and the Guarantor, as long as any of the Securities remain Outstanding
or the parties hereto have any obligation under this Indenture, shall have an authorized agent (the Authorized Agent) in the United States upon whom process may be served in any such legal action or proceeding. Service of process
upon such agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding. The Issuer and the Guarantor
each hereby appoints Teva Pharmaceuticals USA, Inc., 1090 Horsham Road, North Wales, PA 19454, as its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding may be made upon it at such office of
such agent.
Section 10.13. Judgment Currency. Each of the Issuer and the Guarantor agrees, to the fullest extent
that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the
Required Currency) into a currency in which a judgment will be rendered (the Judgment Currency), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the
rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which
final unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the
full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means
any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
Section 10.14. Waiver of Jury Trial. EACH OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
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Section 10.15. Foreign Account Tax Compliance Act. In order to comply with
applicable tax laws, rules and regulations (including directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (Applicable Law), the Issuer agrees to provide to the Trustee
tax-information about holders or the transactions contemplated hereby (including any modification to the terms of such transactions), to the extent such information is directly available to the Issuer, so that the Trustee can determine whether it
has tax-related obligations under Applicable Law and the Issuer acknowledges that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall
be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the
notice to the Holder of any Security of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Any such notice of redemption shall also be
given to the Trustee in the manner provided in Section 10.04 hereof at least 30 days and not more than 60 days prior to the date fixed for redemption.
The notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP number (if any), the date fixed for
redemption, the redemption price, the place or places of payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case,
that interest accrued to the date fixed for redemption will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to
be redeemed in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities
of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of
Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer or, at the Issuers request delivered to the Trustee at least five days before the date such notice is to be given (unless a shorter period shall
be acceptable to the Trustee), by the Trustee in the name and at the expense of the Issuer.
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On or before the redemption date specified in the notice of redemption given as provided in
this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other
property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the outstanding
Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and
the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of
payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that
any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.04 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until
paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
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Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the
Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for
Redemption. Securities shall be excluded from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in
such written statement as directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
Section 11.05. Mandatory and Optional Sinking Funds. 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 payment in excess of such minimum amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. The date on which
a sinking fund payment is to be made is herein referred to as the sinking fund payment date.
In lieu of
making all or any part of any mandatory sinking fund payment with respect to any series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except
upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the Issuer and delivered to the
Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit for Securities of such series (not previously
so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
On or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will
deliver to the Trustee a written statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the mandatory sinking fund payment to be satisfied by
payment of cash and the portion to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating that no defaults in the payment of interest or
Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make an optional sinking fund payment with respect
to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such
written statement (or
51
reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally obligated to
make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such written statement and Securities specified in this
paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding sinking fund payment
date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as provided in this
Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the next succeeding
sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request in writing to the Trustee specifying such lesser amount) with respect to the
Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the date fixed for
redemption. If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in Section 11.02, for
redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities of any series which are (a) owned by the Issuer or an entity known by a Responsible Officer of the Trustee to be directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer, as shown by the Security register, and not known to a Responsible Officer of the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an
Officers Certificate at least 60 days prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or
indirect common control with the Issuer shall be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing)
shall cause notice of redemption of the Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at
the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be applied to the next cash sinking fund payment for such series and, together with such payment,
shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the
payment or redemption of particular Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before the Business Day prior to each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall
otherwise provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
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The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of
notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be
deemed to have been collected under Article 4 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 4.10 or the default cured on or before the 60th day preceding the sinking
fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
ARTICLE 12
GUARANTEE
Section 12.01. The Guarantee. The Guarantor hereby unconditionally guarantees to each Holder of a Security authenticated and
delivered by the Trustee the due and punctual payment of the principal of, any premium and interest on, and any additional amounts with respect to such Security and the due and punctual payment of the sinking fund payments (if any) provided for
pursuant to the terms of such Security, when and as the same shall become due and payable, whether at maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of this Indenture and all other
amounts due and payable under this Indenture. In case of the failure of the Issuer punctually to pay any such principal, premium, interest, additional amounts, sinking fund payment or other amounts, the Guarantor hereby agrees to cause any such
payment to be made punctually when and as the same shall become due and payable, whether at maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Issuer.
Section 12.02. Net Payments. Except as otherwise provided in any indenture supplemental hereto, all payments of principal of
and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature imposed or levied by or on behalf of the State of Israel (the taxing jurisdiction) or any political subdivision or taxing authority thereof or therein, unless such taxes,
fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or
therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing
authority in a taxing jurisdiction or any political
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subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such
Security such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in
such Security, and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such
Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or any political subdivision
thereof, unless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than 30 days after the date on which the payment in respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been entitled to such additional amounts if it had presented such Security for payment on any day within such period of 30 days;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
(c) any tax, assessment or other governmental charge that is imposed or withheld by reason of the failure by the Holder or the beneficial
owner of such Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence or identity of the Holder or such beneficial
owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty, regulation or administrative practice of the
relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(d) any combination of items (a), (b) and (c);
nor shall additional amounts be paid with
respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or partnership or other than the sole beneficial owner of such Security to the extent such payment
would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be included in the income for tax purposes of a beneficiary or partner or settlor with respect to
such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of the Security.
Section 12.03. Guarantee Unconditional, etc. The Guarantor hereby agrees that its obligations hereunder shall be as principal and not merely as surety, and shall be absolute,
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irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security or this Indenture, any failure to enforce the
provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Issuer or any action to enforce the
same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court in the event of merger,
insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this
Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on, and any additional amounts and sinking fund payments required with respect to, the Securities and the complete performance of all other
obligations contained in the Securities and this Indenture, as supplemented and amended from time to time. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 4.01 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction or prohibition extant
under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby.
Section 12.04. Reinstatement. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any time payment on any Security, in whole or in part, is rescinded or
must otherwise be restored to the Issuer or the Guarantor upon the bankruptcy, liquidation or reorganization of the Issuer or otherwise.
Section 12.05. Subrogation. The Guarantor shall be subrogated to all rights of the Holder of any Security against the Issuer in respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any payments arising out of or based upon, such right of subrogation until the principal of, any premium and interest
on, and any additional amounts and sinking fund payments required with respect to, all Securities shall have been paid in full.
Section 12.06. Assumption by Guarantor.
(a) The Guarantor may, without the consent of the Holders, assume all of the rights and obligations of the Issuer hereunder with respect to a series of Securities and under the Securities of such series
if, after giving effect to such assumption, no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights and obligations of the Issuer and the Issuer shall be released from its liabilities hereunder and under such Securities as obligor on the Securities of such Series.
(b) The Guarantor shall assume all of the rights and obligations of the Issuer hereunder with respect to a series of
Securities and under the Securities of such series if, upon a
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default by the Issuer in the due and punctual payment of the principal, sinking fund payment, if any, premium, if any, or interest on such Securities, the Guarantor is prevented by any court
order or judicial proceeding from fulfilling its obligations under Section 12.01 with respect to such series of Securities. Such assumption shall result in the Securities of such series becoming the direct obligations of the Guarantor and shall
be effected without the consent of the Holders of the Securities of any Series. Upon such an assumption, the Guarantor shall execute a supplemental indenture evidencing its assumption of all such rights and obligations of the Issuer, and the Issuer
shall be released from its liabilities hereunder and under such Securities as obligor on the Securities of such Series.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
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Very truly yours, |
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AS ISSUER |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED, |
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AS GUARANTOR |
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By: |
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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THE BANK OF NEW YORK MELLON, |
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AS TRUSTEE |
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By: |
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Name: |
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Title: |
Exhibit 4.5
TEVA PHARMACEUTICAL INDUSTRIES
LIMITED
and
THE BANK OF NEW YORK MELLON, as Trustee
SUBORDINATED INDENTURE
Dated as of ,
TABLE OF CONTENTS
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Page |
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ARTICLE 1. DEFINITIONS |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2. SECURITIES |
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Section 2.01. |
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Forms Generally |
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Section 2.02. |
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Form of Trustees Certification of Authentication |
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Section 2.03. |
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Amount Unlimited; Issuable in Series |
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Section 2.04. |
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Authentication and Delivery of Securities |
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Section 2.05. |
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Execution of Securities |
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Section 2.06. |
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Certificate of Authorization |
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Section 2.07. |
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Denomination and Date of Securities; Payments of Interest |
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Section 2.08. |
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Registration, Transfer and Exchange |
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Section 2.09. |
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Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
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Section 2.10. |
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Cancellation of Securities |
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Section 2.11. |
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Temporary Securities |
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Section 2.12. |
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CUSIP Numbers |
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Section 2.13. |
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Registered Global Securities |
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ARTICLE 3. COVENANTS OF THE ISSUER AND THE TRUSTEE |
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Section 3.01. |
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Payment of Principal and Interest |
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Section 3.02. |
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Offices for Payments, etc. |
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Section 3.03. |
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Appointment to Fill a Vacancy in Office of Trustee |
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Section 3.04. |
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Paying Agents |
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Section 3.05. |
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Certificate of the Issuer |
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Section 3.06. |
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Securityholders Lists |
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Section 3.07. |
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Reports by the Issuer |
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Section 3.08. |
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Reports by the Trustee |
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Section 3.09. |
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Calculation of Original Issue Discount |
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ARTICLE 4. REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
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Section 4.01. |
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Event of Default; Acceleration of Maturity, Waiver of Default |
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Section 4.02. |
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Collection of Indebtedness by Trustee; Trustee May Prove Debt |
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Section 4.03. |
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Application of Proceeds |
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Section 4.04. |
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Suits for Enforcement |
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Section 4.05. |
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Restoration of Rights on Abandonment of Proceeding |
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Section 4.06. |
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Limitations on Suits by Securityholder |
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(i)
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Section 4.07. |
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Unconditional Right of Securityholders to Institute Certain Suits |
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Section 4.08. |
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Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default |
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Section 4.09. |
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Control by Securityholders |
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Section 4.10. |
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Waiver of Past Defaults |
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Section 4.11. |
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Trustee to Give Notice of Default, But May Withhold in Certain Circumstances |
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Section 4.12. |
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Right of Court to Require Filing of Undertaking to Pay Costs |
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ARTICLE 5. CONCERNING THE TRUSTEE |
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Section 5.01. |
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Duties and Responsibilities of the Trustee; During Default; Prior to Default |
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Section 5.02. |
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Certain Rights of the Trustee |
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Section 5.03. |
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Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
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Section 5.04. |
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Trustee and Agents May Hold Securities; Collections, etc. |
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Section 5.05. |
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Moneys Held by Trustee |
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Section 5.06. |
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Compensation and Indemnification of Trustee and its Prior Claim |
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Section 5.07. |
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Right of Trustee to Rely on Officers Certificate, etc. |
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Section 5.08. |
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Persons Eligible for Appointment as Trustee |
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Section 5.09. |
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Resignation and Removal; Appointment of Successor Trustee |
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Section 5.10. |
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Acceptance of Appointment by Successor Trustee |
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Section 5.11. |
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Merger, Conversion, Consolidation or Succession to Business of Trustee |
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ARTICLE 6. CONCERNING THE SECURITYHOLDERS |
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Section 6.01. |
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Evidence of Action Taken by Securityholders |
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Section 6.02. |
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Proof of Execution of Instruments and of Holding of Securities; Record Date |
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Section 6.03. |
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Holders to be Treated as Owners |
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Section 6.04. |
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Securities Owned by Issuer Deemed Not Outstanding |
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Section 6.05. |
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Right of Revocation of Action Taken |
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ARTICLE 7. SUPPLEMENTAL INDENTURES |
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Section 7.01. |
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Supplemental Indentures without Consent of Securityholders |
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Section 7.02. |
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Supplemental Indentures with Consent of Securityholders |
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Section 7.03. |
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Effect of Supplemental Indenture |
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Section 7.04. |
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Documents to Be Given to Trustee |
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Section 7.05. |
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Notation on Securities in Respect of Supplemental Indentures |
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(ii)
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ARTICLE 8. CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
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Section 8.01. |
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Issuer May Consolidate, etc., on Certain Terms |
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Section 8.02. |
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Successor Substituted |
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Section 8.03. |
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Opinion of Counsel to Trustee |
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ARTICLE 9. SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
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Section 9.01. |
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Satisfaction and Discharge of Indenture |
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Section 9.02. |
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Application by Trustee of Funds Deposited for Payment of Securities |
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Section 9.03. |
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Repayment of Moneys Held by Paying Agent |
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Section 9.04. |
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Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
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ARTICLE 10. MISCELLANEOUS PROVISIONS |
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Section 10.01. |
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Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability |
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Section 10.02. |
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Provisions of Indenture for the Sole Benefit of Parties and Securityholders |
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Section 10.03. |
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Successors and Assigns of Issuer Bound by Indenture |
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Section 10.04. |
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Notices and Demands on Issuer, Trustee and Securityholders |
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Section 10.05. |
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Officers Certificates and Opinions of Counsel; Statements to be Contained Therein |
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Section 10.06. |
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Payments Due on Saturdays, Sundays and Holidays |
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Section 10.07. |
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Conflict of any Provision of Indenture with Trust Indenture Act of 1939 |
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Section 10.08. |
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New York Law to Govern |
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Section 10.09. |
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Counterparts |
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Section 10.10. |
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Effect of Headings |
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Section 10.11. |
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Securities in a Non-U.S. Currency |
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Section 10.12. |
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Submission to Jurisdiction |
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Section 10.13. |
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Judgment Currency |
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Section 10.14. |
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Waiver of Jury Trial |
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Section 10.15. |
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Foreign Account Tax Compliance Act |
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ARTICLE 11. REDEMPTION OF SECURITIES AND SINKING FUNDS |
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Section 11.01. |
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Applicability of Article |
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Section 11.02. |
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Notice of Redemption; Partial Redemptions |
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Section 11.03. |
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Payment of Securities Called for Redemption |
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(iii)
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Section 11.04. |
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Exclusion of Certain Securities from Eligibility for Selection for Redemption |
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Section 11.05. |
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Mandatory and Optional Sinking Funds |
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ARTICLE 12. SUBORDINATION OF SECURITIES |
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Section 12.01. |
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Agreement to Subordinate |
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Section 12.02. |
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Payments to Holders of Securities |
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Section 12.03. |
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No Payment When Senior Debt Is In Default |
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Section 12.04. |
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Payment Permitted in Certain Situations |
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Section 12.05. |
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Subrogation to Rights of Holders of Senior Debt |
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Section 12.06. |
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Provisions Solely to Define Relative Rights |
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Section 12.07. |
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Trustee to Effectuate Subordination |
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Section 12.08. |
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No Waiver of Subordination Provisions |
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Section 12.09. |
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Notice to Trustee |
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Section 12.10. |
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Reliance on Judicial Order or Certificate of Liquidating Agent |
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Section 12.11. |
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Trustee Not Fiduciary for Holders of Senior Debt |
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Section 12.12. |
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Rights of Trustee as Holder of Senior Debt; Preservation of Trustees Rights |
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Section 12.13. |
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Article Applicable to Paying Agents |
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(iv)
THIS INDENTURE, dated as of
, between Teva Pharmaceutical Industries Limited, a corporation incorporated
under the laws of Israel (the Issuer), and The Bank of New York Mellon, a New York banking corporation (the Trustee),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the Securities) up to such principal amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture and to provide, among other things, for the authentication, delivery and administration thereof, the Issuer has duly authorized the execution and delivery of this Indenture; and
WHEREAS, all things necessary to make this Indenture a valid indenture and agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1.
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided herein or in any indenture
supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term generally accepted accounting principles means such accounting
principles as are generally accepted at the time of any computation. The words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Authorized Agent shall have the meaning set forth in Section 10.12.
Bearer Security means any Security other than a Registered Security.
Board means either the Board of Directors of the Issuer or any committee
of such Board duly authorized to act hereunder.
Board Resolution means one or more resolutions, certified
by the secretary of the Board to have been duly adopted or consented to by the Board and to be in full force and effect, and delivered to the Trustee.
Business Day means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such
Security, is not a day on which banking institutions are authorized by law or regulation to close.
Commission means the Securities and Exchange Commission, as from time to time constituted, created under the
Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties on
such date.
Corporate Trust Office means the office of the Trustee located in The City
of New York at which at any particular time its corporate trust business shall be administered (which at the date of this Indenture is located at 101 Barclay Street, 4th Floor East, New York, New 10286), Attention: Corporate Trust Administration, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the
Issuer).
Depositary means, with respect to the Securities of any series issuable or issued in the form of
one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter
Depositary shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, Depositary as used with respect to the Securities of any such series shall mean the
Depositary with respect to the Registered Global Securities of that series.
Dollar means the coin or
currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Event of Default means any event or condition specified as such in Section 4.01.
Holder, Holder of Securities, Securityholder or other similar terms mean the
registered holder of any Security.
Indenture means this instrument as originally executed and delivered
or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
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Interest means, when used with respect to non-interest bearing
Securities, interest payable after maturity.
Issuer means (except as otherwise provided in Article 8) Teva
Pharmaceutical Industries Limited, a corporation incorporated under the laws of Israel, and, subject to Article 8, its successors and assigns.
Judgment Currency shall have the meaning set forth in Section 10.13.
New York Banking Day shall have the meaning set forth in Section 10.13.
Non-U.S. Currency means a currency issued by the government of a country other than the United States (or any currency unit comprised of any such currencies).
Officers Certificate means, a certificate (i) signed by any two officers of the Issuer authorized by the
Board to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with Section 314 of the Trust Indenture Act of 1939.
Opinion of Counsel means an opinion in writing reasonably satisfactory to the Trustee signed by legal counsel who may be an employee of or counsel to the Issuer. Each such opinion shall
comply with Section 314 of the Trust Indenture Act of 1939 and include the statements provided for in Section 10.05, if and to the extent required hereby.
Original Issue Date of any Security (or portion thereof) means the earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such
Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue
Discount Security means any Security that provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
Outstanding, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as
of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions
thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer) or shall have been set aside, segregated and held in trust by the
Issuer for the holders of such Securities (if the Issuer shall act as its own paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such redemption shall have been given as
herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in
substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09
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(except with respect to any such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of Outstanding
Securities of any or all series have given any request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue 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 4.01.
Person means any individual, corporation, partnership, joint venture, association, joint stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
Principal
whenever used with reference to the Securities or any Security or any portion thereof, shall be deemed to include and premium, if any.
Registered Global Security, means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with
Section 2.03, and bearing the legend prescribed by the applicable supplemental indenture.
Registered
Security means any Security registered on the Security register of the Issuer.
Required Currency
shall have the meaning set forth in Section 10.13.
Responsible Officer when used with respect to the
Trustee means any officer of the Trustee, including any vice president, any trust officer, any senior associate 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 such officers knowledge of and familiarity with that particular subject and who shall have direct responsibility
for the administration of this Indenture.
Security or Securities has the meaning stated
in the first recital of this Indenture, or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
Senior Debt means, unless otherwise specified in an applicable supplemental indenture, the principal of (and premium, if any) and interest, if any, on all obligations and indebtedness
(other than the Securities) of, or guaranteed or assumed by, the Issuer that are for borrowed money or are evidenced by bonds, debentures, notes or other similar instruments, whether outstanding on the date of this Indenture or thereafter created,
incurred, assumed or guaranteed, and all amendments, renewals, extensions, modifications and refundings of such indebtedness and obligations, unless in any such case the instrument by which such indebtedness or obligations are created, incurred,
assumed or guaranteed by the Issuer, or are evidenced, provides that they are subordinate, or not superior, in right of payment to the Securities.
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Trustee means the Person identified as Trustee in the first
paragraph hereof and, subject to the provisions of Article 5, shall also include any successor trustee.
Trust
Indenture Act of 1939 (except as otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
U.S. Government Obligations shall have the meaning set forth in Section 9.01.
vice president when used with respect to the Issuer or the Trustee, means any vice president, whether or not
designated by a number or a word or words added before or after the title of vice president.
Yield to
Maturity means the yield to maturity on a series of securities, calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted
financial practice.
ARTICLE 2.
SECURITIES
Section 2.01. Forms Generally. The Securities of each
series shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to a resolution of the Board or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution
of the Securities.
The definitive Securities shall be printed or lithographed on security printed paper or may be produced in
any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form of Trustees Certification of Authentication. The Trustees certificate of authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
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Authorized Signatory |
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Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or
more series and unless provided for otherwise in an indenture supplemental hereto, each such series shall be subordinated and subject in right to all Senior Debt in accordance with Article 12. There shall be established in or pursuant to a
resolution of the Board and set forth in an Officers Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the designation of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
(c) if other than Dollars, the coin or currency in which the Securities of that series are denominated (including, but not limited to,
any Non-U.S. Currency);
(d) the date or dates on which the principal of the Securities of the series is payable;
(e) the rate or rates at which the Securities of the series shall bear interest, if any, or the method by which such rate shall be
determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest is payable and/or the method by which such
rate or rates or date or dates shall be determined;
(f) the place or places where the principal of and any interest on
Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the price or prices at which,
the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer, pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of the series pursuant to any mandatory redemption
sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities of the series shall be redeemed, purchased or
repaid, in whole or in part, pursuant to such obligation;
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(i) if other than denominations of $1,000 and any multiple thereof, the denominations in
which Securities of the series shall be issuable;
(j) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy pursuant to Section 4.02;
(k) if other than the coin or currency in which the Securities of that series are denominated, the coin or currency in which payment of
the principal of or interest on the Securities of such series shall be payable;
(l) if the principal of or interest on the
Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which, and the terms and conditions upon
which, such election may be made;
(m) if the amount of payments of principal of and interest on the Securities of the series
may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of securities, commodities or indices, the
manner in which such amounts shall be determined;
(n) if the Holders of the Securities of the series may convert or exchange
the Securities of the series into or for securities of the Issuer or of other entities or other property (or the cash value thereof), the specific terms of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Bearer Securities (with or without Coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the
payment of interest thereon and, if other than as provided herein, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is
not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
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(r) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars or any other agents with respect to the Securities of such series;
(s) any applicable United States federal income
tax and Israel income tax provisions, including, but not limited to: whether and under what circumstances the Issuer will pay additional amounts on Securities for any tax, assessment or governmental charge withheld or deducted and, if so, whether it
will have the option to redeem those Securities rather than pay the additional amounts; tax considerations applicable to any discounted Securities or to Securities issued at par that are treated as having been issued at a discount for United States
federal income tax purposes; and tax considerations applicable to any Securities denominated and payable in foreign currencies;
(t) whether certain payments on the Securities will be guaranteed under a financial insurance guaranty policy and the terms of that
guaranty;
(u) any applicable selling restrictions;
(v) any other events of default, modifications or elimination of any acceleration rights, or covenants with respect to the Securities of such series and any terms required by or advisable under applicable
laws or regulations, including laws and regulations relating attributes required for the Securities to be afforded certain capital treatment for bank regulatory or other purposes; and
(w) any other terms of the series.
All Securities of any one series shall be substantially identical except as to denomination and except as may otherwise be provided in or pursuant to such resolution of the Board or in any such indenture
supplemental hereto. 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 such Board Resolution or in any such
indenture supplemental hereto.
Section 2.04. Authentication and Delivery of Securities. At any time and from time
to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon
the written order of the Issuer, signed by any two officers of the Issuer authorized by the Board to execute any such order, without any further action by the Issuer. In authenticating such Securities and accepting the additional responsibilities
under this Indenture in relation to such Securities the Trustee shall receive, and (subject to Section 5.01) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the Board authorizing the action taken pursuant to the resolution or resolutions delivered under clause 2.04(b) below;
(b) a copy of any resolution or resolutions of the Board relating to such series, in each case certified by the Secretary or an Assistant
Secretary of the Issuer;
(c) an executed supplemental indenture, if any;
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(d) an Officers Certificate setting forth the form and terms of the Securities as
required pursuant to Sections 2.01 and 2.03, respectively and prepared in accordance with Section 10.05;
(e) an Opinion
of Counsel, prepared in accordance with Section 10.05,
(i) to the effect that the form or forms and terms
of such Securities have been established by or pursuant to a resolution of the Board or by a supplemental indenture as permitted by Sections 2.01 and 2.03 in conformity with the provisions of this Indenture;
(ii) to the effect that such Securities, when authenticated and delivered by the Trustee and issued by the Issuer in the
manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer; and
(iii) covering such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Section 2.05. Execution of Securities. The Securities shall be signed on behalf of the Issuer by any two officers of the
Issuer authorized by the Board to execute such Securities, which Securities may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such officers. Typographical and other minor errors or
defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so signed shall be authenticated and delivered by the Trustee or disposed
of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of the Issuer; and any Security may be signed on behalf of the Issuer by
such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this Indenture any such person was not such an officer.
Section 2.06. Certificate of Authorization. Only such Securities as shall bear thereon a certificate of authentication
substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture or be valid or obligatory for any purpose. Such certificate by the
Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the holder is entitled to the benefits of this Indenture.
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Section 2.07. Denomination and Date of Securities; Payments of Interest. The
Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of any series, the
Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the Issuer
executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the
dates, in each case, which shall be specified as contemplated by Section 2.03.
The person in whose name any Security of
any series is registered at the close of business on any record date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date
notwithstanding any transfer or exchange of such Security subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer shall default in the payment of the interest due on such interest payment date
for such series, in which case such defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business
Days prior to the date of payment of such defaulted interest) established by notice given by mail by or on behalf of the Issuer to the holders of Securities not less than 15 days preceding such subsequent record date. The term record
date as used with respect to any interest payment date (except a date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if
such interest payment date is the first day of a calendar month, the 15th day of the next preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
Section 2.08. Registration, Transfer and Exchange. The Issuer will keep or cause
to be kept at each office or agency to be maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of,
Securities as in this Article provided. Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall
be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the
same series in authorized denominations for a like aggregate principal amount.
Any Security or Securities of any series may
be exchanged for a Security or Securities of the same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to
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be maintained by the Issuer for the purpose as provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or
Securities of the same series which the Securityholder making the exchange shall be entitled to receive, bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange, redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or
instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder or his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service
charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of
(a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities of such series to be redeemed, (b) any Securities selected, called or being called for redemption except, in
the case of any Security where notice has been given that such Security is to be redeemed in part, the portion thereof not so to be redeemed or (c) any Securities of any series between a record date and the next succeeding payment date.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations of the Issuer, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or among Depositary Participants or beneficial owners of interests in any Registered Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any agent shall have any responsibility for any actions taken or not taken by the Depositary.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive
Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof in the case of mutilation or defacement shall surrender the Security to the Trustee or such agent.
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Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any Security which has matured or is
about to mature or has been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof
except in the case of a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee such security or indemnity as any of them may require to save each of
them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer or the Trustee evidence to their satisfaction of the destruction, loss or theft of such
Security and of the ownership thereof.
Every substitute Security of any series issued pursuant to the provisions of this
section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer, 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 (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and delivered hereunder.
All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or stolen Securities
and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities without their
surrender.
Section 2.10. Cancellation of Securities. All Securities surrendered for payment, redemption,
registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation or, if
surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held by it in
accordance with its procedures for the disposition of cancelled Securities and deliver a certificate of disposition to the Issuer upon request. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such series but with such omissions,
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insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of the Trustee. Temporary Securities may contain such
reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such series a like aggregate principal amount of definitive
Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive Securities of such series unless otherwise established
pursuant to Section 2.03.
Section 2.12. CUSIP Numbers. The Issuer 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 and other notices to the Holders as a convenience to Holders; provided that any such notice may state
that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP numbers.
Section 2.13. Registered Global Securities. None of the Issuer, the Trustee or any Agent shall have any responsibility or
obligation to any beneficial owner of an interest in a Registered Global Security, any members of, or a participant in, the Depositary (Agent Members) or other Person with respect to the accuracy of the records of the Depositary
or its nominee or any participant or Agent Member thereof, with respect to any ownership interest in a Registered Global Security or with respect to the delivery to any participant, Agent Member, beneficial owner or other Person (other than the
Depositary) of any notice or the payment of any amount or delivery of any Registered Global Security (or other security or property) under or with respect to such Registered Global Securities. All notices and communications to be given to the
Holders and all payments to be made to Holders in respect of the Registered Global Securities shall be given or made only to or upon the order of the registered Holders. The rights of beneficial owners in any Registered Global Security shall be
exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Issuer, the Trustee and each Agent may rely and shall be fully protected in relying upon information furnished by the Depositary with respect
to its Agent Members, participants and any beneficial owners.
ARTICLE 3.
COVENANTS OF THE ISSUER AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series (together with any
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additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such Securities. Subject to any other provisions
that may be established pursuant to Section 2.03, the interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon the written order of the Holders thereof and,
at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the registry books of the Issuer.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of or any premium, interest or any other
amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of additional amounts provided by the terms
of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the payment of additional amounts (if
applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Section 3.02. Offices for Payments, etc. So long as any of the Securities remain outstanding, the Issuer will maintain in the Borough of Manhattan, The City of New York, the following for each
series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for exchange as in this Indenture or any supplemental indenture provided and
(c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. The Issuer will give to the Trustee written notice of the location of any such office or agency and of any change of location
thereof. Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of the Trustee, as the office to be maintained by it for each such purpose. In case the Issuer shall fail to
so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be made and notices may be served at the Corporate Trust Office.
The Issuer may from time to time designate one or more additional offices or agencies where the Securities of a series may be presented
for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.03 and where the Securities of that series may be presented for registration of transfer as provided in this
Indenture, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation or rescission shall in any manner relieve the Issuer of its obligation to
maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided in
Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
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Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent
other than the Trustee with respect to the Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities
of such series (whether such sums have been paid to it by the Issuer or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by any other obligor on the Securities of such series) to make
any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c)
that it will pay any such sums so held in trust by it to the Trustee upon the Trustees written request at any time during the continuance of the failure referred to in clause 3.04(b) above.
The Issuer will, on the Business Day prior to each due date of the principal of or interest on the Securities of such series, deposit
with the paying agent a sum in immediately available funds sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities of any Series, it will, on or before each due
date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum sufficient to pay such principal or interest so becoming due. The
Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this section to the contrary
notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held
in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein contained.
Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this section is subject to the provisions of Sections 9.03 and 9.04.
For the avoidance of doubt, any paying agent hereunder shall comply with applicable backup withholding tax and information reporting
requirements under the U.S. Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations promulgated thereunder with respect to payments made under the Securities of any series (including, to the extent required, the collection of
Internal Revenue Service Forms W-8 and W-9 and the filing of U.S. Internal Revenue Service Forms 1099 and 1096).
Section 3.05. Certificate of the Issuer. The Issuer will furnish to the Trustee within 120 days after the end of each fiscal
year of the Issuer, commencing on ,
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an Officers Certificate of the Issuer as to the signers knowledge of the Issuers compliance with all conditions and covenants under the Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice provided under the Indenture). If any Securities are guaranteed by a guarantor, the guarantor shall also provide such certificate. In the event an Officer of the Issuer comes
to have actual knowledge of an Event of Default or an event which, with notice or the lapse of time or both, would constitute an Event of Default, regardless of the date, the Issuer shall deliver an Officers Certificate to the Trustee
specifying such Default and the nature and status thereof.
Section 3.06. Securityholders Lists. If and so long as
the Trustee shall not be the Security registrar for the Securities of any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of
the Securities of such series pursuant to Section 312 of the Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such
record date and on dates to be determined pursuant to Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such
request as of a date not more than 15 days prior to the time such information is furnished.
Section 3.07. Reports by
the Issuer. The Issuer covenants to file with the Trustee, within 15 days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the Issuer may be
required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934. Reports, information and documents filed by the Issuer with the Commission via the EDGAR system will be deemed filed with
the Trustee for purposes of this Section 3.07 as of the time that such reports, information and documents are filed via EDGAR. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the
Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of its covenants hereunder (as to which
the Trustee is entitled to rely exclusively on Officers Certificates).
The Trustee shall have no obligation to
determine if and when the reports, information and documents of the Issuer are filed with the Commission via the EDGAR system and available on the Commissions EDGAR website. If the Issuer ceases to be a reporting company with the Commission,
it shall provide the Trustee with prompt written notification at that time and shall provide the Trustee with such reports, information and documents as set forth in this Section 3.07.
Section 3.08. Reports by the Trustee. Any Trustees report required under Section 313(a) of the Trust Indenture Act
of 1939 shall be transmitted on or before July 15 in each year following the date hereof, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto.
Section 3.09. Calculation of Original Issue Discount. The Issuer shall prepare and provide to the
Trustee on a timely basis any form required to be submitted by the Trustee on behalf of the Issuer with the Internal Revenue Service and the Holders of Securities relating to original issue discount, including, without limitation, Form 1099-OID or
any successor form.
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ARTICLE 4.
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default; Acceleration of Maturity, Waiver of Default. Unless otherwise established in accordance with
Section 2.03 or by any applicable supplemental indenture, Event of Default with respect to Securities of any series wherever used herein means each one of the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of premium or principal in respect of the Securities;
(b) default for more than 30 days in the payment of interest in respect of the Securities; or
(c) the failure to perform or observe any other obligations under the Securities which failure continues for the period of 60 days next
following service on the Issuer and any guarantor of the Securities of notice requiring the same to be remedied; or
(d) the
entry by a court having jurisdiction in the premises of:
(i) a decree or order for relief in respect of the
Issuer or any guarantor of the Securities in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; or
(ii) a decree or order adjudging the Issuer or any guarantor of the Securities a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Issuer or any such guarantor under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Issuer or any such guarantor or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by the
Issuer or any guarantor of the Securities of a voluntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer or such guarantor in an involuntary case or proceeding under any applicable
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U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or such guarantor,
or the filing by the Issuer or such guarantor of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law, or the consent by the Issuer or such guarantor to the filing of such petition or to the
appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or such guarantor or of any substantial part of its property, or the making by the Issuer or such
guarantor of an assignment for the benefit or creditors, or the admission by the Issuer or such guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or such guarantor
expressly in furtherance of any such action; or
(f) any other Event of Default provided in the supplemental indenture or
resolution of the Board under which such series of Securities is issued or in the form of Security for such series.
Unless
otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or 4.01(f) above (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to less than all series
of Securities then Outstanding) occurs and is continuing, then, and in each and every such case, except for any series the principal of which shall have already become due and payable, either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Securities of all series affected thereby then Outstanding hereunder (treated as one class) by notice in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of such affected series and the interest accrued thereon,
if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(c) or
4.01(f) (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to all series of Securities at the time Outstanding) occurs and is continuing, then and in each and every such case, unless the principal of all the Securities shall
have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the then Outstanding Securities hereunder (treated as one class) for which any applicable supplemental indenture does
not prevent acceleration under the relevant circumstances, by notice in writing to the Issuer and any guarantor of then outstanding Securities (and to the Trustee if given by Securityholders), may declare the entire principal (or, if any Securities
are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is continuing, then the principal and
accrued and unpaid interest, and premium of any, with respect to any Securities then Outstanding 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.
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The foregoing provisions, however, are subject to the condition that if, at any time after
the principal (or, if the Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so
declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay all matured
installments of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due
otherwise than by acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit)
and such amount as shall be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad
faith, and if any and all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and
in every such case the holders of a majority in aggregate principal amount of all the Securities of each such series (or of all the Securities, as the case may be), then Outstanding (in each case treated as one class), by written notice to the
Issuer and to the Trustee, may waive all defaults with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and
annulment shall extend to or shall affect any subsequent default or shall impair any right consequent thereon.
For all
purposes under this Indenture, if a portion of the principal of any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such
declaration has been rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such
acceleration, and payment of such portion of the principal thereof as shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt.
The Issuer covenants that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a
period of 30 days or (b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such
series or upon any redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall have become due and
payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under
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applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities
of such series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and
counsel, and any expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or not the principal of and interest on the
Securities of such series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the
Trustee, in its own name and as trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or
proceedings to judgment or final decree, and may enforce any such judgment or final decree against the Issuer or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or other obligor upon
such Securities, wherever situated, the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings
relative to the Issuer or any other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy
or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer or
other obligor upon the Securities of any series, or to the creditors or property of the Issuer or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer or other obligor upon the Securities
of any series, or to the creditors or property of the Issuer or such other obligor,
(b) unless prohibited by applicable law
and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency proceedings or person performing
similar functions in comparable proceedings, and
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(c) to collect and receive any moneys or other property payable or deliverable on any such
claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other similar official is hereby authorized by each of the
Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as shall be sufficient to cover reasonable compensation
to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except in the event of a determination
of its own negligence or bad faith.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent
to or vote for or accept or adopt on behalf of any Securityholder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under any of the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof
on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses,
disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be for the ratable benefit of the holders of the Securities in respect of which such action was taken.
In any proceedings brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to
which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such action was taken, and it shall not be necessary to make any holders of such Securities parties to any such
proceedings.
Section 4.03. Application of Proceeds. Subject to the subordination provisions in this Indenture,
any moneys collected by the Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or
interest, upon presentation of the several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the
presented Securities of like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of
costs and expenses applicable to such series in respect of which monies have been collected, including reasonable compensation to the Trustee and each
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predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by the Trustee and each predecessor Trustee except in the event
of a determination of its own negligence or bad faith;
SECOND: In case the principal of the Securities of such series in
respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the maturity of the installments of such interest, with interest
(to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in such
Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In
case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then owing and unpaid upon all the Securities of such series
for principal and interest, with interest upon the overdue principal, and (to the extent that such interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in
the case of Original Issue Discount Securities) specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of
such principal and interest or Yield to Maturity, without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of
interest, or of any Security of such series over any other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or as a court of competent jurisdiction may direct.
Section 4.04. Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the
Trustee may in its discretion proceed to protect and enforce the rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in
the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on Abandonment of Proceeding. In
case the Trustee shall have proceeded to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the
Issuer and the Trustee shall be restored respectively to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
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Section 4.06. Limitations on Suits by Securityholder. No holder of any Security
of any series shall have any right by virtue or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the
appointment of a trustee, receiver, liquidator, custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as
hereinbefore provided, and unless also the Holders of not less than 25% in aggregate principal amount of the Securities of each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to
institute such action or proceedings in its own name as trustee hereunder and shall have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for
60 days after its receipt of such notice, request and offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 4.09; it being understood and intended, and being expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any
right in any manner whatever by virtue or by availing of any provision of this Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such
Holder or to enforce any right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of
this Section, each and every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this Indenture and any provision of any Security, the right of any
Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in such Security, or to institute 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 4.08. Powers and Remedies
Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Securityholders is intended to be exclusive of any other right or remedy,
and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right
or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by law to the Trustee or to the Securityholders may be exercised from
time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
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Section 4.09. Control by Securityholders. The Holders of a majority in aggregate
principal amount of the Securities of each series affected (with all such series voting as a single class) at the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this
Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully
be taken or if the Trustee in good faith shall determine that the action or proceedings so directed would involve the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or
pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall
have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
Nothing in
this Indenture shall impair the right of the Trustee in its discretion to take any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 4.10. Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting as a single class) may on
behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 4.01 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, any guarantor, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred 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 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall give to the
Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days
after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term default or defaults for the purposes of this section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of any
sinking or
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purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive
committee, or a trust committee of directors or trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each
Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable
attorneys fees and expenses, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Securityholder or group of Securityholders of any series holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit
relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating
to or arising under clauses 4.01(c) or 4.01(f) (if the suit relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder
for the enforcement of the payment of the principal of or interest on any Security on or after the due date expressed in such Security.
ARTICLE 5.
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of
any series of Securities issued hereunder, the Trustee, prior to the occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with
respect to such series, undertakes to perform such duties and only such duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived)
the Trustee shall exercise with respect to such series of Securities such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have
occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any Series shall be
determined solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations
shall be read into this Indenture against the Trustee; and
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(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case
of any such statements, certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to
be taken by it in good faith in accordance with the direction of the holders pursuant to Section 4.09 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.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment
of such funds or adequate indemnity against such liability is not reasonably assured to it.
The provisions of this
Section 5.01 are in furtherance of and subject to Sections 315 and 316 of the Trust Indenture Act of 1939.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to the Trust Indenture Act of 1939, and subject to
Section 5.01:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any
resolution, Officers Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon, security or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned
herein shall be sufficiently evidenced by an Officers Certificate (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board may be evidenced to the Trustee by a copy thereof certified by the
secretary or an assistant secretary of the Issuer;
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(c) the Trustee may consult with counsel of its selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in it by this Indenture at the request, order
or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities which might
be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the holders of not less than a majority in aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer promptly upon demand;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers Certificate;
(i) the Trustee shall not be deemed to have notice of any Event of Default or an event which,
with notice or lapse of time or both, would constitute an Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights,
privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent,
custodian and other Person employed to act hereunder;
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(k) the Trustee may request that the Issuer deliver an Officers Certificate setting
forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officers Certificate may be signed by any person authorized to sign an Officers Certificate,
including any person specified as so authorized in any such certificate previously delivered and not superseded;
(l) in no
event shall the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised
of the likelihood of such loss or damage and regardless of the form of action;
(m) in no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of
war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee
shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances; and
(n) neither the Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance by the Issuer or the Securityholders with or with respect to any securities or tax
laws (including but not limited to any United States federal or state or other securities or tax laws), or, except as specifically provided herein, obtain documentation on any transfers or exchanges of the Securities of any series. Nothing in this
provision shall be deemed to limit the Trustees duty to comply with any obligations it may have pursuant to applicable law.
Section 5.03. Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustees
certificates of authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of
the Securities. The Trustee shall not be accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04. Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Issuer or the Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities with the same rights it would have if it were not the Trustee or such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections from the Issuer with the same rights it would have if it were
not the Trustee or such agent.
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Section 5.05. Moneys Held by Trustee. Subject to the provisions of
Section 9.04 hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required
by mandatory provisions of law. All such moneys shall remain uninvested and neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
Section 5.06. Compensation and Indemnification of Trustee and its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, compensation as the Issuer and the Trustee shall from time to time agree in writing (which shall not be limited by any provision of law in regard to the compensation of a trustee of an
express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of
the provisions of this Indenture (including the reasonable compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance
shall be determined to have been caused by its own negligence or bad faith. The Issuer also covenants to indemnify the Trustee and each predecessor Trustee and their agents, officers, directors and employees for, and to hold each of them harmless
against, any loss, liability or expense arising out of or in connection with the acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself
against or investigating any claim of liability in the premises, except to the extent such loss, liability or expense shall be determined to have been caused by the negligence or bad faith of the Trustee, or such predecessor Trustee or their
respective agents, officers, directors and employees. The obligations of the Issuer under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for
expenses, disbursements and advances shall constitute additional indebtedness hereunder and shall survive the payment in full of the Securities issued hereunder, the resignation or removal of the Trustee, or the satisfaction and discharge of this
Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities, and
the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 4.01(d) or Section 4.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or other similar law.
Section 5.07. Right
of Trustee to Rely on Officers Certificate, etc. Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established
prior to taking or suffering or omitting any action hereunder, such matter may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered to
the Trustee, and such certificate, in the absence of negligence or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith
thereof.
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Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each
series of Securities hereunder shall at all times be a corporation organized and doing business under the laws of the United States of America or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is
eligible in accordance with the provisions of Section 310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a federal, state or District of
Columbia supervising or examining authority, then for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so
published.
Section 5.09. Resignation and Removal; Appointment of Successor Trustee. (a) The Trustee, or any
trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by mailing notice thereof by first class mail to Holders of the
applicable series of Securities at their last addresses as they shall appear on the Security register. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect to the applicable series
by written instrument in duplicate, executed by authority of the Board, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee shall have been so appointed
with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee at the Issuers expense may petition any court of competent jurisdiction for the appointment of a
successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
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then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed by order of the Board of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor
trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe,
remove the Trustee and appoint a successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Securities of each series at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to
the successor trustee so appointed and to the Issuer the evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in
Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be
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necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall
constitute such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which
such successor trustee is acting as trustee at their last addresses as they shall appear in the Security register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding
sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at
the expense of the Issuer.
Section 5.11. Merger, Conversion, Consolidation or Succession to Business of Trustee.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to
all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In
case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any successor to the Trustee may authenticate such Securities
either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the name of any predecessor Trustee shall apply only to its
successor or successors by merger, conversion or consolidation.
ARTICLE 6.
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
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Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record
Date. Subject to Sections 5.01 and 5.02, the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as
shall be satisfactory to the Trustee. The holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity of holders of Securities
of any series entitled to vote or consent to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter, notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date
shall be entitled to so vote or give such consent or revoke such vote or consent.
Section 6.03. Holders to be Treated
as Owners. The Issuer, the Trustee and any agent of the Issuer or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether
or not such Security shall be overdue and notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be
valid, and, to the extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite aggregate principal amount of Outstanding Securities of any or all series
have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being made shall be disregarded and deemed not to be Outstanding for the
purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only Securities which a Responsible Officer of the Trustee actually knows are so
owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgees right so to act with respect to such Securities
and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities. In
case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly an
Officers Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account
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of any of the above-described persons; and, subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers 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 6.05. Right of Revocation of Action Taken. At any time prior to (but not after) the evidencing to the Trustee, as
provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action, any
Holder of a Security the serial number of which is shown by the evidence to be included among the serial numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and
upon proof of holding as provided in this Article, revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future
Holders and owners of such Security and of any Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action
taken by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee
and the Holders of all the Securities affected by such action.
ARTICLE 7.
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures without Consent of Securityholders. The Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such
action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby), and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another legal entity to the
Issuer, or successive successions, and the assumption by the successor legal entity of the covenants, agreements and obligations of the Issuer pursuant to Article 8;
(c) to add to the covenants of the Issuer such further covenants, restrictions, conditions or provisions as the Issuer and the Trustee shall consider to be for the protection of the Holders of Securities,
and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all or any of the several remedies provided in
this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or
longer than that allowed in the case
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of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the remedies available to the Trustee upon such an Event of Default or may limit the
right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or inconsistent with any other provision contained herein or in
any supplemental indenture; or to make such other provisions in regard to matters or questions arising under this Indenture or under any supplemental indenture as the Board may deem necessary or desirable and which shall not adversely affect the
interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of any
series as permitted by Sections 2.01 and 2.03; and
(f) to evidence and provide for the acceptance of appointment hereunder by
a successor trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, pursuant to the requirements of Section 5.10.
The Trustee is hereby authorized to join with the Issuer in the
execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder, but the
Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02.
Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all series
affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may
be determined by officers of the Issuer authorized thereby), and the Trustee may, from time to time and at any time, enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of the Securities of each such series; provided, that no such supplemental indenture shall
(a) (i) extend the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or extend the time of payment of interest thereon, (iv) reduce any amount payable on redemption thereof,
(v) make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any coin or currency other than that provided in the Securities or in accordance with
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the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or in accordance with the terms thereof,
(vii) reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy pursuant to
Section 4.02, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities for securities of the Issuer or a guarantor of the Securities or of other entities or other property (or the cash value thereof),
including the determination of the amount of securities or other property (or cash) into which the Securities shall be converted or exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the
Securities or otherwise in accordance with the terms thereof, (ix) alter the provisions of Section 10.11 or Section 10.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the
Securities provide therefor, any right of repayment at the option of the Securityholder, in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the
consent of the Holders of which is required for any such supplemental indenture, without the consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of
Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board (which resolutions may provide general authorization
for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Issuer in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this section to approve the
particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof by (a) first class mail to
the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer or (b) by any other means set forth in such supplemental indenture, setting forth in general terms the
substance of such supplemental indenture. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
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Section 7.03. Effect of Supplemental Indenture. Upon the execution of any
supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this
Indenture of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and
conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
Section 7.04. Documents to Be Given to Trustee. In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon an Officers Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 7.05. Notation on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the Trustee for such series as to any matter provided for by such supplemental indenture or as to any
action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Board, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then Outstanding.
ARTICLE 8.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May Consolidate, etc., on Certain Terms. The Issuer covenants that it will not merge or consolidate with
any other Person or sell or convey all or substantially all of its assets to any Person, unless (i) either the Issuer shall be the continuing legal entity, or the successor legal entity or the Person which acquires by sale or conveyance
substantially all the assets of the Issuer (if other than the Issuer) shall expressly assume the due and punctual payment of the principal of and interest on all the Securities, according to their tenor, and the due and punctual performance and
observance of all of the covenants and conditions of this Indenture to be performed or observed by the Issuer, by supplemental indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and
(ii) the Issuer or such successor legal entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant or condition.
Section 8.02. Successor Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an
assumption by the successor legal entity, all in the
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manner described in section 8.01, such successor legal entity shall succeed to and be substituted for the Issuer, with the same effect as if it had been named herein. Such successor legal entity
may cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all of the Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the
Trustee; and, upon the order of such successor legal entity instead of the Issuer and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously
shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such successor legal entity thereafter shall cause to be signed and delivered to the Trustee for that purpose. All of the
Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued
at the date of the execution hereof. Any required changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of such assumption following any sale or conveyance in accordance with section 8.01 and this section 8.02 (other than a
conveyance by way of lease) the Issuer (including any successor legal entity that has been further substituted in accordance with section 8.01 and this section 8.02) shall be discharged from all obligations and covenants under this Indenture and the
Securities and may be liquidated and dissolved.
Section 8.03. Opinion of Counsel to Trustee. The Trustee, subject
to the provisions of Sections 5.01 and 5.02, shall receive an Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any
such liquidation or dissolution, complies with the applicable provisions of this Indenture.
ARTICLE 9.
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01. Satisfaction and Discharge of Indenture. (a) If at any time (i) the Issuer shall have paid or caused to be paid the principal of and interest on all the Securities of
any series outstanding hereunder (other than Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and payable, or
(ii) the Issuer shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09) or (iii) (A) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable
within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer shall have irrevocably deposited or caused to be deposited with the
Trustee as trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) in the case of any series of Securities the payments on which may only be made in
United States dollars, direct obligations of the United States of
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America, backed by its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity as the case may be, and if, in any such case,
the Issuer shall also pay or cause to be paid all other sums payable hereunder by the Issuer with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to Securities of such series (except as to
(i) rights of registration of transfer and exchange of securities of such series, and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (iii) rights
of holders to receive payments of principal thereof and interest thereon upon the original stated due date therefor (but no upon acceleration), and remaining rights of the holders to receive mandatory sinking fund payments, if any, (iv) the
rights, obligations, indemnities and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them),
and the Trustee, on demand of the Issuer accompanied by an Officers Certificate and an Opinion of Counsel and at the cost and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this
Indenture with respect to such series; provided, that the rights of Holders of the Securities to receive amounts in respect of principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable
mandatory rules or policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any
services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such series.
(b) The following provisions shall apply to the Securities of each series unless specifically otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto provided
pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause 9.01(b)(i) below, the Issuer shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of
the deposit referred to in clause 9.01(b)(i) below, and the provisions of this Indenture with respect to the Securities of such series thereto shall no longer be in effect (except as to (1) rights of registration of transfer and exchange of
Securities of such series and the Issuers right of optional redemption, if any, (2) substitution of mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of Securities to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations, duties, indemnities and
immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series as beneficiaries hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the
Issuer under Section 3.02) and the Trustee, at the expense of the Issuer and any guarantor of the Securities, shall at the Issuers or such guarantors request, execute proper instruments acknowledging the same, if
(i) with reference to this provision the Issuer or such guarantor has irrevocably deposited or caused to be irrevocably
deposited with the Trustee as trust funds in trust, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of
Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to pay (1) the principal and interest on all Securities of such series and Coupons
appertaining thereto on each date that such principal or interest is due and payable and (2) any mandatory sinking fund payments on the dates on which such payments are due and payable in accordance with the terms of the Indenture and the
Securities of such series;
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(ii) such deposit will not result in a breach or violation of, or constitute
a default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(iii) the
Issuer or such guarantor has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there
has been a change in the applicable federal income tax law, in either case to the effect that, and such opinion shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss
for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance
and discharge had not occurred; and
(iv) the Issuer or such guarantor has delivered to the Trustee an
Officers Certificate or guarantors Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
(c) Each of the Issuer and any guarantor of the Securities shall be released from its obligations under Section 8.01
with respect to the Securities of any Series, Outstanding, and under any guarantee in respect thereof, on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this purpose, such
covenant defeasance means that, with respect to the Outstanding Securities of any Series, and under a guarantee in respect thereof, the Issuer and any guarantor of the Securities may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in such Sections, whether directly or indirectly by reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default under Section 4.01, but the remainder of this Indenture and such Securities and Coupons and the Guarantee shall be unaffected thereby. The following shall be the
conditions to application of this subsection (c) of this Section 9.01:
(i) The Issuer or such
guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the
Securities of such series, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to
pay (1) the principal and interest on all Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series.
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(ii) No Event of Default or event which with notice or lapse of time or both
would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit after giving effect thereto.
(iii) Such covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the Trust Indenture Act of 1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture
or any other agreement or instrument to which the Issuer or such guarantor is a party or by which either of them is bound.
(v) Such covenant defeasance shall not cause any Securities then listed on any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer or such guarantor shall have delivered to the Trustee an Officers Certificate or guarantors
Officers Certificate, as the case may be, and Opinion of Counsel to the effect that the Holders of the Securities of such series 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.
(vii) The Issuer or such guarantor shall have delivered to the Trustee an Officers Certificate or guarantors
Officers Certificate, as the case may be, and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the covenant defeasance contemplated by this provision have been complied with.
Section 9.02. Application by Trustee of Funds Deposited for Payment of Securities. Subject to Section 9.04 and any
subordination provisions applicable to the Securities, all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it to the payment, either directly or through any paying agent (including the Issuer
acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or
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redemption of which such moneys have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
Section 9.03. Repayment of Moneys Held by Paying Agent. In connection with
the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon written demand of the
Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further liability with respect to such moneys.
Section 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal
of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying
agent with respect to such moneys shall thereupon cease.
The Issuer shall pay and indemnify the Trustee against any tax, fee
or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the
account of the Holders of Outstanding Securities.
ARTICLE 10.
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement
contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, member, officer or director, as such, of the Issuer
or of any successor, either directly or through the Issuer or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability
being expressly waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the issue of the Securities.
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders. Nothing in this Indenture or in the Securities, expressed or implied, shall give or be construed to
give to any person, firm or corporation, other than the parties hereto and their successors, the holders of Senior Debt and the Holders of the Securities, any legal or equitable right, remedy or claim under this Indenture or under any covenant or
provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors, the holders of Senior Debt and of the Holders of the Securities.
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Section 10.03. Successors and Assigns of Issuer Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders. Any notice or demand which by any provision of this Indenture is required or permitted to be given or served by the
Trustee or by the Holders of Securities to or on the Issuer may be given or served by being deposited postage prepaid, first-class mail (except as otherwise specifically provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Teva Pharmaceutical Industries Limited at the following address:
Teva Pharmaceutical Industries
Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131
Israel
Attention: Chief Financial Officer
Fax:
with copies to:
Teva Pharmaceutical Industries Limited
5 Basel Street, P.O. Box 3190
Petach Tikva 49131
Israel
Attention: General Counsel
Fax:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
Any notice, direction, request or demand by the Issuer or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered in person or
mailed by first-class mail to the Trustee at 101 Barclay Street, Floor 4E, New York, NY 10286, Attention: Corporate Trust Administration Global Finance Unit.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile transmission or other similar unsecured electronic methods. If the party
elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such instructions, the Trustees understanding of such instructions shall be
deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from
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the Trustees reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. Each other party
agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception
and misuse by third parties.
Where this Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer and Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner of giving such
notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Notwithstanding
anything to the contrary contained herein, as long as the Securities are in the form of a Registered Global Security, notice to the Holders may be made electronically in accordance with procedures of the Depositary.
Section 10.05. Officers Certificates and Opinions of Counsel; Statements to be Contained Therein. Upon any application
or demand by the Issuer to the Trustee to take any action under any of the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officers Certificate stating that all conditions precedent provided for in this Indenture
relating to the proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or
covenant provided for in this Indenture 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.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar as it relates to legal matters, upon a
certificate or opinion of or representations by counsel, unless such officer knows that the certificate or opinion or representations with respect
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to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any
certificate, statement or opinion of counsel may be based, insofar as it relates to factual matters, information with respect to which is in the possession of the Issuer, upon the certificate, statement or opinion of or representations by an officer
of officers of the Issuer, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of
the Issuer or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel, as the case
may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable care should know that
the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with the Trustee shall
contain a statement that such firm is independent.
Section 10.06. Payments Due on Saturdays, Sundays and
Holidays. If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need not be made
on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that any
provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an incorporated provision), such
incorporated provision shall control.
Section 10.08. New York Law to Govern. This Indenture and each Security
shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.
Section 10.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Securities in a
Non-U.S. Currency. Unless otherwise specified in an Officers Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be
taken by the Holders of a specified percentage in aggregate principal amount of Securities of all series
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or all series affected by a particular action at the time Outstanding and, at such time, there are Outstanding Securities of any series which are denominated in a coin or currency other than
Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For
purposes of this Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not
available for any reason with respect to such currency, the Issuer shall use, in good faith and its reasonable discretion and without liability on its part, such quotation of the Federal Reserve Bank of New York as of the most recent available date,
or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, or such other quotations as the Issuer shall in its commercially reasonable judgment deem appropriate. The provisions of this
paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in connection with any action taken by Holders of Securities pursuant to the terms of this
Indenture.
All decisions and determinations of the Issuer regarding the Market Exchange Rate or any alternative determination
provided for in the preceding paragraph shall be in its commercially reasonable judgment and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all
Holders.
Section 10.12. Submission to Jurisdiction. The Issuer agrees that any legal suit, action or proceeding
arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue of any
such proceeding, and irrevocably submits to the jurisdiction of such court in any suit, action or proceeding. The Issuer, as long as any of the Securities remain Outstanding or the parties hereto have any obligation under this Indenture, shall have
an authorized agent (the Authorized Agent) in the United States upon whom process may be served in any such legal action or proceeding. Service of process upon such agent and written notice of such service mailed or delivered to
it shall to the extent permitted by law be deemed in every respect effective service of process upon it in any such legal action or proceeding. The Issuer hereby appoints Teva Pharmaceuticals USA, Inc., 1090 Horsham Road, North Wales, PA 19454, as
its agent for such purposes, and covenants and agrees that service of process in any legal action or proceeding may be made upon it at such office of such agent.
Section 10.13. Judgment Currency. The Issuer agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any
court it is necessary to convert the sum due in respect of the principal of or interest on the Securities of any series (the Required Currency) into a currency in which a judgment will be rendered (the Judgment
Currency), the rate of exchange used shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in accordance
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with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final
unappealable judgment is entered and (b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not
entered in accordance with subsection (a)), in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed
to be payable in respect of such payments, (ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the
full amount of the Required Currency so expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means
any day except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
Section 10.14. Waiver of Jury Trial. EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.15. Foreign Account Tax Compliance Act. In order to comply with applicable tax laws, rules and regulations
(including directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time (Applicable Law), the Issuer agrees to provide to the Trustee tax-information about holders or the
transactions contemplated hereby (including any modification to the terms of such transactions), to the extent such information is directly available to the Issuer, so that the Trustee can determine whether it has tax-related obligations under
Applicable Law and the Issuer acknowledges that the Trustee shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
ARTICLE 11.
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall
be given by mailing notice of such redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall
appear upon the registry books. Any notice which is mailed in the manner herein provided shall be conclusively presumed to have
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been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security of a series designated for redemption as
a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Any such notice of redemption shall also be given to the Trustee in the manner provided in Section 10.04 hereof at
least 30 days and not more than 60 days prior to the date fixed for redemption.
The notice of redemption to each such Holder
shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP number (if any), the date fixed for redemption, the redemption price, the place or places of payment, that payment will be made upon
presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption will be paid as specified in such notice
and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption shall state the portion of the principal
amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option of the Issuer shall be given by the Issuer
or, at the Issuers request, delivered to the Trustee at least five days before the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee) by the Trustee in the name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption given as provided in this Section, the Issuer will
deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or other property sufficient to redeem on
the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the outstanding Securities of a series are to be
redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers Certificate stating the aggregate principal amount of Securities to be redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it shall deem appropriate and
fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The Trustee shall promptly notify
the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all purposes of this Indenture, unless
the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security which
has been or is to be redeemed.
Section 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of Securities specified in
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such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest accrued to the date fixed for redemption,
and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of Securities so called for redemption shall
cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof shall have no right
in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a place of payment specified in said notice, said
Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption; provided that any semiannual payment of interest
becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.03 and 2.04 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded
from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.
Section 11.05. Mandatory and
Optional Sinking Funds. 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 payment in excess of such
minimum amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. The date on which a sinking fund payment is to be made is herein referred to as the sinking
fund payment date.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the mandatory sinking fund) by the Issuer or receive
credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as
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aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made
pursuant to this Section, or (c) receive credit for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or
credited shall be received or credited by the Trustee at the sinking fund redemption price specified in such Securities.
On
or before the 60th day next preceding each sinking fund payment date for any series, the Issuer will deliver to the Trustee a written statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of
the Issuer (a) specifying the portion of the mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series
has theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or
not the Issuer intends to exercise its right to make an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next
succeeding sinking fund payment date. Any Securities of such series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the
Trustee shall be delivered for cancellation pursuant to Section 2.10 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt
by the Trustee the Issuer shall become unconditionally obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th
day, to deliver such written statement and Securities specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund
payment for such series due on the next succeeding sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional
sinking fund payment with respect to such series as provided in this Section.
If the sinking fund payment or payments
(mandatory or optional or both) to be made in cash on the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request in
writing to the Trustee specifying such lesser amount) with respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking
fund redemption price together with accrued interest to the date fixed for redemption. If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The
Trustee shall select, in the manner provided in Section 11.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in
writing by the Issuer) inform the Issuer of the serial numbers of the Securities of such series (or portions thereof) so selected. Securities of any series which are (a) owned by the Issuer or an entity known by a Responsible Officer of the
Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, as shown by the Security register, and
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not known to a Responsible Officer of the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an Officers Certificate at least 60 days
prior to the sinking fund payment date as being beneficially owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall
be excluded from Securities of such series eligible for selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the
Securities of such series to be given in substantially the manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer. The amount of
any sinking fund payments not so applied or allocated to the redemption of Securities of such series shall be applied to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the
provisions of this Section. Any and all sinking fund moneys held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular
Securities of such series shall be applied, together with other moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before the Business Day prior to each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise
provide for the payment of all interest accrued to the date fixed for redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities or of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to
be redeemed such Securities, provided that it shall have received from the Issuer a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall
occur, and any moneys thereafter paid into the sinking fund, shall, during the continuance of such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities. In case such Event of
Default shall have been waived as provided in Section 4.10 or the default cured on or before the 60th day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment
date in accordance with this Section to the redemption of such Securities.
ARTICLE 12.
SUBORDINATION OF SECURITIES
Section 12.01. Agreement to Subordinate. The Issuer covenants and agrees, and each Holder of a Security issued hereunder by his acceptance thereof likewise covenants and agrees, that all
Securities shall be issued subject to the provisions of this Article; and each person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof accepts and agrees that the principal of (and premium, if any)
and interest on all
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Securities issued hereunder shall, to the extent and in the manner set forth herein, subject to any modifications or additional terms set forth in any applicable supplemental indenture, be
subordinated and subject in right to the prior payment in full of all Senior Debt.
Section 12.02. Payments to Holders
of Securities. In the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Issuer or to its creditors, as
such, or to its assets, or (b) any liquidation, dissolution or other winding up of the Issuer, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, and (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Issuer, then and in any such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Debt (including any
interest accruing thereon after the commencement of any such case or proceeding), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities, and to that end the holders of Senior Debt shall be entitled to receive, for application to the payment thereof, any
payment or distribution of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer being
subordinated to the payment of the Securities, which may be payable or deliverable in respect of the Securities in any such case, proceeding, dissolution or other winding up event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Issuer of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other
indebtedness of the Issuer being subordinated to the payment of the Securities, before all Senior Debt is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Issuer for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in full, after giving effect to any concurrent payment or distribution
to or for the holders of Senior Debt.
For purposes of this Article only, the words cash, property or securities
shall not be deemed to include shares of stock of the Issuer as reorganized or readjusted, or securities of the Issuer or any other corporation or other entity provided for by a plan of reorganization or readjustment which are subordinated in right
of payment to all Senior Debt which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are pursuant to the provisions in this Article. The consolidation of the Issuer with, or the merger
of the Issuer into, another legal entity or the liquidation or dissolution of the Issuer following the conveyance or transfer of its property as an entirety, or substantially as an entirety, to another legal entity upon the terms and conditions
provided in Article 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the purposes of this section if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the
conditions stated in Article 8.
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Section 12.03. No Payment When Senior Debt Is In Default. Subject to the last
paragraph of this Section, (a) in the event and during the continuation of any default in the payment of principal of (or premium, if any) or interest on any Senior Debt beyond any applicable grace period with respect thereto (but not if such
default in payment shall have been cured or waived or shall have ceased to exist), or (b) in the event that the holders of such Senior Debt (or a trustee on behalf of the holders thereof) to have declared such Senior Debt due and payable prior
to the date on which it would otherwise have become due and payable by reason of an event of default (but not if such declaration of acceleration shall have been rescinded or annulled), then no payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Issuer being subordinated to the payment of the Securities) shall be made by the Issuer on account of principal of (or premium, if any) or interest on the Securities or on account of the
purchase or other acquisition of Securities, other than pursuant to their conversion, if any; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance with Article 11 by delivering and
crediting pursuant to Section 11.05 Securities which have been acquired (upon redemption or otherwise) prior to such default in payment.
In the event that, notwithstanding the foregoing, the Issuer shall make any payment to the Trustee or the Holder of any Security prohibited by the provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith to the Issuer.
Section 12.04. Payment Permitted in Certain Situations. Nothing contained in this Article or elsewhere in this Indenture or
in any of the Securities shall prevent (a) the Issuer, at any time except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Issuer referred to in Section 12.02 or under the conditions described in Section 12.03, from making payments at any time of or on account of the principal of (and premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of the Securities, or (b) the application by the Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and premium, if any) or interest on the
Securities or the retention of such payment by the Holders, if, at the time of such application by the Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article.
Section 12.05. Subrogation to Rights of Holders of Senior Debt. Subject to the payment in full of all Senior Debt or the
provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of indebtedness of the Issuer which by its express terms is subordinated to the indebtedness of the Issuer to substantially the same extent as the
Securities are subordinated to the Senior Debt and is entitled to like rights of subrogation) to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property and securities applicable to the Senior Debt until
the
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principal of (and premium, if any) and interest on the Securities shall be paid in full. For purposes of such subrogation, no payments or distributions to the holders of the Senior Debt of any
cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Debt by Holders
of the Securities or the Trustee, shall, as among the Issuer, its creditors other than holders of Senior Debt and the Holders of the Securities, be deemed to be a payment or distribution by the Issuer to or on account of the Securities.
Section 12.06. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for
the purpose of defining the relative rights of the Holders of the Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or
shall (a) impair, as among the Issuer, its creditors other than holders of Senior Debt and the Holders of the Securities, the obligation of the Issuer, which is absolute and unconditional, to pay to the Holders of the Securities the principal
of (and premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Issuer of the Holders of the Securities and creditors of the
Issuer other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under
this Article of the holders of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
Section 12.07. Trustee to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 12.08. No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Debt to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Issuer or by any act or failure to act, in good faith, by any such holder, or by any non-compliance by the Issuer with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Section 12.09. Notice to
Trustee. The Issuer shall give prompt written notice to the Trustee of any fact known to the Issuer which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article
or any other provision of this Indenture, the Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible
Officer of the Trustee shall have received written notice thereof from the Issuer or a holder of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of
Section 5.01, shall be entitled in all respects to assume that no such facts exist.
Subject to the provisions of
Section 5.01, the Trustee shall be entitled to rely on the delivery to it of a written notice by a Person representing himself to be a holder of Senior
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Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee therefor). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 12.10. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Issuer referred to in this Article, the Trustee, subject to the
provisions of Section 5.01, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the holders of Senior Debt and other indebtedness of the Issuer, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
Section 12.11. Trustee Not Fiduciary for Holders of Senior Debt. The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be liable to any such
holders or creditors if it shall in good faith pay over or distribute to Holders of Securities or to the Issuer or to any other Person cash, property or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are specifically set forth in this Article and no implied covenants or obligations with respect to
holders of Senior Debt shall be read into this Indenture against the Trustee.
Section 12.12. Rights of Trustee as
Holder of Senior Debt; Preservation of Trustees Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this Article with respect to any Senior Debt which may at any time be held by it, to the same
extent as any other holder of Senior Debt and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.06.
Section 12.13. Article Applicable to Paying Agents. In case at any time any paying agent other than the Trustee shall have been appointed by the Issuer and be then acting hereunder, the term
Trustee as used in this Article shall in such case (unless the context otherwise requires) be construed as extending to and including such paying agent within its meaning as fully for all intents and purposes as if such paying agent were
named in this Article in addition to or in place of the Trustee.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the day and year first above written.
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Very truly yours, |
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED |
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By: |
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Name: |
Title: |
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By: |
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Name: |
Title: |
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THE BANK OF NEW YORK MELLON, as Trustee |
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By: |
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Name: |
Title: |
Exhibit 4.6
,
as Issuer
TEVA
PHARMACEUTICAL INDUSTRIES LIMITED,
as Guarantor
and
THE BANK OF NEW YORK MELLON, as Trustee
SUBORDINATED INDENTURE
Dated as of
TABLE OF CONTENTS
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Page |
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ARTICLE 1 DEFINITIONS |
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Section 1.01. |
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Certain Terms Defined |
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1 |
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ARTICLE 2 SECURITIES |
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Section 2.01. |
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Forms Generally |
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6 |
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Section 2.02. |
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Form of Trustees Certification of Authentication |
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6 |
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Section 2.03. |
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Amount Unlimited; Issuable in Series |
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6 |
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Section 2.04. |
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Authentication and Delivery of Securities |
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9 |
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Section 2.05. |
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Execution of Securities |
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10 |
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Section 2.06. |
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Certificate of Authorization |
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10 |
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Section 2.07. |
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Denomination and Date of Securities; Payments of Interest |
|
10 |
|
|
|
Section 2.08. |
|
Registration, Transfer and Exchange |
|
11 |
|
|
|
Section 2.09. |
|
Mutilated, Defaced, Destroyed, Lost and Stolen Securities |
|
12 |
|
|
|
Section 2.10. |
|
Cancellation of Securities |
|
13 |
|
|
|
Section 2.11. |
|
Temporary Securities |
|
13 |
|
|
|
Section 2.12. |
|
CUSIP Numbers |
|
13 |
|
|
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Section 2.13. |
|
Registered Global Securities |
|
14 |
|
ARTICLE 3 COVENANTS OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE |
|
|
|
Section 3.01. |
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Payment of Principal and Interest |
|
14 |
|
|
|
Section 3.02. |
|
Offices for Payments, etc. |
|
14 |
|
|
|
Section 3.03. |
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Appointment to Fill a Vacancy in Office of Trustee |
|
15 |
|
|
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Section 3.04. |
|
Paying Agents |
|
15 |
|
|
|
Section 3.05. |
|
Certificates of the Issuer and the Guarantor |
|
16 |
|
|
|
Section 3.06. |
|
Securityholders Lists |
|
16 |
|
|
|
Section 3.07. |
|
Reports by the Issuer |
|
17 |
|
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Section 3.08. |
|
Reports by the Trustee |
|
17 |
|
|
|
Section 3.09. |
|
Calculation of Original Issue Discount |
|
17 |
(i)
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|
|
|
|
ARTICLE 4 REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT |
|
|
|
Section 4.01. |
|
Event of Default; Acceleration of Maturity, Waiver of Default |
|
17 |
|
|
|
Section 4.02. |
|
Collection of Indebtedness by Trustee; Trustee May Prove Debt |
|
20 |
|
|
|
Section 4.03. |
|
Application of Proceeds |
|
22 |
|
|
|
Section 4.04. |
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Suits for Enforcement |
|
23 |
|
|
|
Section 4.05. |
|
Restoration of Rights on Abandonment of Proceeding |
|
23 |
|
|
|
Section 4.06. |
|
Limitations on Suits by Securityholder |
|
23 |
|
|
|
Section 4.07. |
|
Unconditional Right of Securityholders to Institute Certain Suits |
|
24 |
|
|
|
Section 4.08. |
|
Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default |
|
24 |
|
|
|
Section 4.09. |
|
Control by Securityholders |
|
24 |
|
|
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Section 4.10. |
|
Waiver of Past Defaults |
|
25 |
|
|
|
Section 4.11. |
|
Trustee to Give Notice of Default, But May Withhold in Certain Circumstances |
|
25 |
|
|
|
Section 4.12. |
|
Right of Court to Require Filing of Undertaking to Pay Costs |
|
25 |
|
ARTICLE 5 CONCERNING THE TRUSTEE |
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|
|
Section 5.01. |
|
Duties and Responsibilities of the Trustee; During Default; Prior to Default |
|
26 |
|
|
|
Section 5.02. |
|
Certain Rights of the Trustee |
|
27 |
|
|
|
Section 5.03. |
|
Trustee Not Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof |
|
29 |
|
|
|
Section 5.04. |
|
Trustee and Agents May Hold Securities; Collections, etc. |
|
29 |
|
|
|
Section 5.05. |
|
Moneys Held by Trustee |
|
29 |
|
|
|
Section 5.06. |
|
Compensation and Indemnification of Trustee and its Prior Claim |
|
29 |
|
|
|
Section 5.07. |
|
Right of Trustee to Rely on Officers Certificate, etc. |
|
30 |
|
|
|
Section 5.08. |
|
Persons Eligible for Appointment as Trustee |
|
30 |
|
|
|
Section 5.09. |
|
Resignation and Removal; Appointment of Successor Trustee |
|
31 |
|
|
|
Section 5.10. |
|
Acceptance of Appointment by Successor Trustee |
|
32 |
|
|
|
Section 5.11. |
|
Merger, Conversion, Consolidation or Succession to Business of Trustee |
|
33 |
|
ARTICLE 6 CONCERNING THE SECURITYHOLDERS |
|
|
|
Section 6.01. |
|
Evidence of Action Taken by Securityholders |
|
33 |
(ii)
|
|
|
|
|
|
|
|
Section 6.02. |
|
Proof of Execution of Instruments and of Holding of Securities; Record Date |
|
33 |
|
|
|
Section 6.03. |
|
Holders to be Treated as Owners |
|
34 |
|
|
|
Section 6.04. |
|
Securities Owned by Issuer Deemed Not Outstanding |
|
34 |
|
|
|
Section 6.05. |
|
Right of Revocation of Action Taken |
|
34 |
|
ARTICLE 7 SUPPLEMENTAL INDENTURES |
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|
|
Section 7.01. |
|
Supplemental Indentures without Consent of Securityholders |
|
35 |
|
|
|
Section 7.02. |
|
Supplemental Indentures with Consent of Securityholders |
|
36 |
|
|
|
Section 7.03. |
|
Effect of Supplemental Indenture |
|
37 |
|
|
|
Section 7.04. |
|
Documents to Be Given to Trustee |
|
38 |
|
|
|
Section 7.05. |
|
Notation on Securities in Respect of Supplemental Indentures |
|
38 |
|
ARTICLE 8 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
|
|
|
Section 8.01. |
|
Issuer May Consolidate, etc., on Certain Terms |
|
38 |
|
|
|
Section 8.02. |
|
Successor Substituted |
|
38 |
|
|
|
Section 8.03. |
|
Guarantor May Consolidate, etc., on Certain Terms |
|
39 |
|
|
|
Section 8.04. |
|
Successor Legal Entity Substituted for the Guarantor |
|
39 |
|
|
|
Section 8.05. |
|
Opinion of Counsel to Trustee |
|
39 |
|
ARTICLE 9 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
|
|
|
Section 9.01. |
|
Satisfaction and Discharge of Indenture |
|
40 |
|
|
|
Section 9.02. |
|
Application by Trustee of Funds Deposited for Payment of Securities |
|
43 |
|
|
|
Section 9.03. |
|
Repayment of Moneys Held by Paying Agent |
|
43 |
|
|
|
Section 9.04. |
|
Return of Moneys Held by Trustee and Paying Agent Unclaimed for Two Years |
|
43 |
|
ARTICLE 10 MISCELLANEOUS PROVISIONS |
|
|
|
Section 10.01. |
|
Incorporators, Stockholders, Members, Officers and Directors of Issuer Exempt from Individual Liability |
|
44 |
|
|
|
Section 10.02. |
|
Provisions of Indenture for the Sole Benefit of Parties and Securityholders |
|
44 |
|
|
|
Section 10.03. |
|
Successors and Assigns of Issuer and Guarantor Bound by Indenture |
|
44 |
|
|
|
Section 10.04. |
|
Notices and Demands on Issuer, Trustee and Securityholders |
|
44 |
(iii)
|
|
|
|
|
Section 10.05. |
|
Officers Certificates and Opinions of Counsel; Statements to be Contained Therein |
|
46 |
|
|
|
Section 10.06. |
|
Payments Due on Saturdays, Sundays and Holidays |
|
47 |
|
|
|
Section 10.07. |
|
Conflict of any Provision of Indenture with Trust Indenture Act of 1939 |
|
47 |
|
|
|
Section 10.08. |
|
New York Law to Govern |
|
47 |
|
|
|
Section 10.09. |
|
Counterparts |
|
47 |
|
|
|
Section 10.10. |
|
Effect of Headings |
|
47 |
|
|
|
Section 10.11. |
|
Securities in a Non-U.S. Currency |
|
47 |
|
|
|
Section 10.12. |
|
Submission to Jurisdiction |
|
48 |
|
|
|
Section 10.13. |
|
Judgment Currency |
|
48 |
|
|
|
Section 10.14. |
|
Waiver of Jury Trial |
|
49 |
|
|
|
Section 10.15. |
|
Foreign Account Tax Compliance Act |
|
49 |
|
ARTICLE 11 REDEMPTION OF SECURITIES AND SINKING FUNDS |
|
|
|
Section 11.01. |
|
Applicability of Article |
|
49 |
|
|
|
Section 11.02. |
|
Notice of Redemption; Partial Redemptions |
|
49 |
|
|
|
Section 11.03. |
|
Payment of Securities Called for Redemption |
|
51 |
|
|
|
Section 11.04. |
|
Exclusion of Certain Securities from Eligibility for Selection for Redemption |
|
51 |
|
|
|
Section 11.05. |
|
Mandatory and Optional Sinking Funds |
|
51 |
|
ARTICLE 12 GUARANTEE |
|
|
|
Section 12.01. |
|
The Guarantee |
|
53 |
|
|
|
Section 12.02. |
|
Net Payments |
|
54 |
|
|
|
Section 12.03. |
|
Guarantee Unconditional, etc. |
|
55 |
|
|
|
Section 12.04. |
|
Reinstatement |
|
55 |
|
|
|
Section 12.05. |
|
Subrogation |
|
56 |
|
|
|
Section 12.06. |
|
Assumption by Guarantor |
|
56 |
|
ARTICLE 13 SUBORDINATION OF SECURITIES |
|
|
|
Section 13.01. |
|
Agreement to Subordinate |
|
56 |
|
|
|
Section 13.02. |
|
Payments to Holders of Securities |
|
57 |
|
|
|
Section 13.03. |
|
No Payment When Senior Debt Is in Default |
|
58 |
|
|
|
Section 13.04. |
|
Payment Permitted in Certain Situations |
|
58 |
(iv)
|
|
|
|
|
Section 13.05. |
|
Subrogation to Rights of Holders of Senior Debt |
|
58 |
|
|
|
Section 13.06. |
|
Provisions Solely to Define Relative Rights |
|
59 |
|
|
|
Section 13.07. |
|
Trustee to Effectuate Subordination |
|
59 |
|
|
|
Section 13.08. |
|
No Waiver of Subordination Provisions |
|
59 |
|
|
|
Section 13.09. |
|
Notice to Trustee |
|
59 |
|
|
|
Section 13.10. |
|
Reliance on Judicial Order or Certificate of Liquidating Agent |
|
60 |
|
|
|
Section 13.11. |
|
Trustee Not Fiduciary for Holders of Senior Debt |
|
60 |
|
|
|
Section 13.12. |
|
Rights of Trustee as Holder of Senior Debt; Preservation of Trustees Rights |
|
60 |
|
|
|
Section 13.13. |
|
Article Applicable to Paying Agents |
|
60 |
(v)
THIS INDENTURE, dated as of
, among ,
a (the Issuer), Teva Pharmaceutical Industries Limited, a corporation incorporated under the laws of Israel
(the Guarantor), and The Bank of New York Mellon, a New York banking corporation (the Trustee),
W I T N E S S E T H :
WHEREAS, the Issuer has duly authorized the issue from
time to time of its unsecured debentures, notes or other evidences of indebtedness to be issued in one or more series (the Securities) up to such principal amount or amounts as may from time to time be authorized in accordance
with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
WHEREAS, for value
received, the Guarantor has duly authorized the execution and delivery of this Indenture to provide for the issuance of the Guarantee provided for herein, and all things necessary to make this Indenture a valid indenture and legally binding
agreement of the Guarantor according to its terms have been done; and
WHEREAS, all things necessary to make this Indenture a
valid indenture and legally binding agreement of the Issuer according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof, the Issuer, the Guarantor and
the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective holders from time to time of the Securities as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Certain Terms Defined. The following terms (except as otherwise expressly provided herein or in any indenture
supplemental hereto, or unless the context otherwise clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939 or the definitions of which in the Securities Act of 1933 are referred to in the Trust Indenture Act of 1939, including terms defined therein by reference to the Securities Act of 1933 (except as
herein otherwise expressly provided or unless the context otherwise clearly requires), shall have the meanings assigned to such terms in said Trust Indenture Act and in said Securities Act as in force at the date of this Indenture. All accounting
terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with generally accepted accounting principles, and the term generally accepted accounting principles means such accounting
principles as are generally accepted at the time of any computation. The words herein, hereof and hereunder and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include the plural as well as the singular.
Authorized Agent shall have the meaning set forth in Section 10.12.
Bearer Security means any Security other than a Registered Security.
Board means the board of directors or the board of [managers / managing directors or supervisory directors] of the
Issuer, or any other body or Person authorized by the organizational documents or by the members of the Issuer to act for it.
Board Resolution means one or more resolutions, certified by the secretary of the Board to have been duly adopted or
consented to by the Board and to be in full force and effect, and delivered to the Trustee.
Business Day
means, with respect to any Security, a day that in the city (or in any of the cities, if more than one) in which amounts are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized by law or
regulation to close.
Commission means the Securities and Exchange Commission, as from time to time
constituted, created under the Securities Exchange Act of 1934, or if at any time after the execution and delivery of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties on such date.
Corporate Trust Office means the office of the Trustee located
in The City of New York at which at any particular time its corporate trust business shall be administered (which at the date of this Indenture is located at 101 Barclay Street, 4th Floor East, New York, New York 10286), Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to time by notice to the Holders and the Issuer, or the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may
designate from time to time by notice to the Holders and the Issuer).
Depositary means, with respect to
the Securities of any series issuable or issued in the form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer pursuant to Section 2.03 until a successor Depositary shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter Depositary shall mean or include each Person who is then a Depositary hereunder, and if at any time there is more than one such Person, Depositary as used with
respect to the Securities of any such series shall mean the Depositary with respect to the Registered Global Securities of that series.
Dollar means the coin or currency of the United States of America as at the time of payment is legal tender for the payment of public and private debts.
Event of Default means any event or condition specified as such in Section 4.01.
2
Guarantee means the unconditional guarantee of the payment of the
principal of, any premium or interest on, and any additional amounts with respect to the Securities by the Guarantor, as more fully set forth in Article 12.
Guarantor means the Person named as the Guarantor in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter Guarantor shall mean such successor Person.
Guarantors Board of Directors means the Board of Directors of the Guarantor or any committee of such Board duly
authorized to act hereunder.
Guarantors Officers Certificate means a certificate
(i) signed by any two officers of the Guarantor duly authorized to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with the requirements of Section 314 of the Trust Indenture Act of
1939.
Holder, Holder of Securities, Securityholder or other similar
terms mean the registered holder of any Security.
Indenture means this instrument as originally executed
and delivered or, if amended or supplemented as herein provided, as so amended or supplemented or both, and shall include the forms and terms of particular series of Securities established as contemplated hereunder.
Interest means, when used with respect to non-interest bearing Securities, interest payable after maturity.
Issuer means (except as otherwise provided in Article 8)
, a
organized under the laws of
, and, subject to Article 8, its successors and assigns.
Judgment Currency shall have the meaning set forth in Section 10.13.
New York Banking Day shall have the meaning set forth in Section 10.13.
Non-U.S. Currency means a currency issued by the government of a country other than the United States (or any currency
unit comprised of any such currencies).
Officers Certificate means a certificate (i) signed by
any two officers of the Issuer (which may include any managing director or supervisory director) authorized by the Board to execute any such certificate and (ii) delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939.
Opinion of Counsel means an opinion in writing reasonably satisfactory
to the Trustee signed by legal counsel to the Issuer or the Guarantor who may be an employee of or counsel to the Issuer or the Guarantor. Each such opinion shall comply with Section 314 of the Trust Indenture Act of 1939 and include the
statements provided for in Section 10.05, if and to the extent required hereby.
3
Original Issue Date of any Security (or portion thereof) means the
earlier of (a) the date of such Security or (b) the date of any Security (or portion thereof) for which such Security was issued (directly or indirectly) on registration of transfer, exchange or substitution.
Original Issue Discount Security means any Security that provides for an amount less than the principal amount thereof
to be due and payable upon a declaration of acceleration of the maturity thereof pursuant to Section 4.01.
Outstanding, when used with reference to Securities, shall, subject to the provisions of Section 6.04, mean, as
of any particular time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a)
Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities, or portions
thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with the Trustee or with any paying agent (other than the Issuer or the Guarantor) or shall have been set aside, segregated and held in
trust by the Issuer or the Guarantor for the holders of such Securities (if the Issuer shall act as its own, or authorize the Guarantor to act as, paying agent), provided that if such Securities, or portions thereof, are to be redeemed prior to the
maturity thereof, notice of such redemption shall have been given as herein provided, or provision satisfactory to the Trustee shall have been made for giving such notice; and
(c) Securities in substitution for which other Securities shall have been authenticated and delivered, or which shall have been paid, pursuant to the terms of Section 2.09 (except with respect to any
such Security as to which proof satisfactory to the Trustee is presented that such Security is held by a person in whose hands such Security is a legal, valid and binding obligation of the Issuer).
In determining whether the holders of the requisite principal amount of Outstanding Securities of any or all series have given any
request, demand, authorization, direction, notice, consent or waiver hereunder, the principal amount of an Original Issue 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 4.01.
Person means any individual, corporation, partnership, joint venture, association, joint stock company, trust, unincorporated organization or government or any agency or political
subdivision thereof.
Principal whenever used with reference to the Securities or any Security or any
portion thereof, shall be deemed to include and premium, if any.
Registered Global Security
means a Security evidencing all or a part of a series of Registered Securities, issued to the Depositary for such series in accordance with Section 2.03, and bearing the legend prescribed by the applicable supplemental indenture.
4
Registered Security means any Security registered on the Security
register of the Issuer.
Required Currency shall have the meaning set forth in Section 10.13.
Responsible Officer, when used with respect to the Trustee, means any officer of the Trustee, including
any vice president, any trust officer, any senior associate 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 such officers knowledge of and familiarity with that particular subject and who shall have direct responsibility for the administration of this Indenture.
Security or Securities has the meaning stated in the first recital of this Indenture,
or, as the case may be, Securities that have been authenticated and delivered under this Indenture.
Senior
Debt means, unless otherwise specified in an applicable supplemental indenture, the principal of (and premium, if any) and interest, if any, on all obligations and indebtedness (other than the Securities) of, or guaranteed or assumed by,
the Issuer or the Guarantor that are for borrowed money or are evidenced by bonds, debentures, notes or other similar instruments, whether outstanding on the date of this Indenture or thereafter created, incurred, assumed or guaranteed, and all
amendments, renewals, extensions, modifications and refundings of such indebtedness and obligations, unless in any such case the instrument by which such indebtedness or obligations are created, incurred, assumed or guaranteed by the Issuer or the
Guarantor, or are evidenced, provides that they are subordinate, or not superior, in right of payment to the Securities.
Trustee means the Person identified as Trustee in the first paragraph hereof and, subject to the
provisions of Article 5, shall also include any successor trustee.
Trust Indenture Act of 1939 (except as
otherwise provided in Sections 7.01 and 7.02) means the Trust Indenture Act of 1939 as in force at the date as of which this Indenture was originally executed.
U.S. Government Obligations shall have the meaning set forth in Section 9.01.
vice president when used with respect to the Issuer or the Trustee, means any vice president, whether or not designated by a number or a word or words added before or after the title of
vice president.
Yield to Maturity means the yield to maturity on a series of securities,
calculated at the time of issuance of such series, or, if applicable, at the most recent redetermination of interest on such series, and calculated in accordance with accepted financial practice.
5
ARTICLE 2
SECURITIES
Section 2.01. Forms Generally. The Securities of each
series shall be substantially in such form (not inconsistent with this Indenture) as shall be established by or pursuant to a resolution of the Board or in one or more indentures supplemental hereto, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends, not inconsistent with the provisions of this Indenture, as may be required to
comply with any law or with any rules or regulations pursuant thereto, or with any rules of any securities exchange or to conform to general usage, all as may be determined by the officers executing such Securities, as evidenced by their execution
of the Securities.
The definitive Securities shall be printed or lithographed on security printed paper or may be produced in
any other manner, all as determined by the officers executing such Securities, as evidenced by their execution of such Securities.
Section 2.02. Form of Trustees Certification of Authentication. The Trustees certificate of authentication on all Securities shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
The Bank of New York Mellon,
as Trustee
By:
Authorized Signatory
Date:
Section 2.03. Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series and unless provided for
otherwise in an indenture supplemental hereto, each such series shall be subordinated and subject in right to all Senior Debt in accordance with Article 13. There shall be established in or pursuant to a resolution of the Board and set forth in an
Officers Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(a) the designation of the Securities of the series (which shall distinguish the Securities of the series from all other Securities);
(b) any limit upon the aggregate principal amount of the Securities of the series that may be authenticated and delivered under this
Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 2.08, 2.09, 2.11 or 11.03);
6
(c) if other than Dollars, the coin or currency in which the Securities of that series are
denominated (including, but not limited to, any Non-U.S. Currency);
(d) the date or dates on which the principal of the
Securities of the series is payable;
(e) the rate or rates at which the Securities of the series shall bear interest, if any,
or the method by which such rate shall be determined, the date or dates from which such interest shall accrue, the interest payment dates on which such interest shall be payable and the record dates for the determination of Holders to whom interest
is payable and/or the method by which such rate or rates or date or dates shall be determined;
(f) the place or places where
the principal of and any interest on Securities of the series shall be payable (if other than as provided in Section 3.02);
(g) the price or prices at which, the period or periods within which and the terms and conditions upon which Securities of the series may be redeemed, in whole or in part, at the option of the Issuer,
pursuant to any sinking fund or otherwise;
(h) the obligation, if any, of the Issuer to redeem, purchase or repay Securities
of the series pursuant to any mandatory redemption sinking fund or analogous provisions or at the option of a Holder thereof and the price or prices at which and the period or periods within which and the terms and conditions upon which Securities
of the series shall be redeemed, purchased or repaid, in whole or in part, pursuant to such obligation;
(i) if other than
denominations of $1,000 and any multiple thereof, the denominations in which Securities of the series shall be issuable;
(j)
if other than the principal amount thereof, the portion of the principal amount of Securities of the series which shall be payable upon declaration of acceleration of the maturity thereof pursuant to Section 4.01 or provable in bankruptcy
pursuant to Section 4.02;
(k) if other than the coin or currency in which the Securities of that series are denominated,
the coin or currency in which payment of the principal of or interest on the Securities of such series shall be payable;
(l)
if the principal of or interest on the Securities of such series are to be payable, at the election of the Issuer or a Holder thereof, in a coin or currency other than that in which the Securities are denominated, the period or periods within which,
and the terms and conditions upon which, such election may be made;
(m) if the amount of payments of principal of and
interest on the Securities of the series may be determined with reference to an index based on a coin or currency other than that in which the Securities of the series are denominated, or with reference to any currencies, securities or baskets of
securities, commodities or indices, the manner in which such amounts shall be determined;
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(n) if the Holders of the Securities of the series may convert or exchange the Securities of
the series into or for securities of the Issuer or of other entities or other property (or the cash value thereof), the specific terms of and period during which such conversion or exchange may be made;
(o) whether the Securities of the series will be issuable as Registered Securities (and if so, whether such Securities will be issuable
as Registered Global Securities) or Bearer Securities (with or without coupons), or any combination of the foregoing, any restrictions applicable to the offer, sale, transfer, exchange or delivery of Bearer Securities or Registered Securities or the
payment of interest thereon and, if other than as provided herein, the terms upon which Bearer Securities of any series may be exchanged for Registered Securities of such series and vice versa;
(p) whether and under what circumstances the Issuer will pay additional amounts on the Securities of the series held by a Person who is
not a U.S. Person in respect of any tax, assessment or governmental charge withheld or deducted and, if so, whether the Issuer will have the option to redeem such Securities rather than pay such additional amounts;
(q) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, the form and terms of such certificates, documents or conditions;
(r) any trustees, depositaries, authenticating or paying agents, transfer agents or registrars or any other agents with respect to the
Securities of such series;
(s) any applicable United States federal income tax and Israel income tax provisions, including,
but not limited to: whether and under what circumstances the Issuer will pay additional amounts on Securities for any tax, assessment or governmental charge withheld or deducted and, if so, whether it will have the option to redeem those Securities
rather than pay the additional amounts; tax considerations applicable to any discounted Securities or to Securities issued at par that are treated as having been issued at a discount for United States federal income tax purposes; and tax
considerations applicable to any Securities denominated and payable in foreign currencies;
(t) whether certain payments on
the Securities will be guaranteed under a financial insurance guaranty policy and the terms of that guaranty;
(u) any
applicable selling restrictions;
(v) any other events of default, modifications or elimination of any acceleration rights, or
covenants with respect to the Securities of such series and any terms required by or advisable under applicable laws or regulations, including laws and regulations relating attributes required for the Securities to be afforded certain capital
treatment for bank regulatory or other purposes; and
(w) any other terms of the series.
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All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such resolution of the Board or in any such indenture supplemental hereto. 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 such Board Resolution or in any such indenture supplemental hereto.
Section 2.04. Authentication and Delivery of Securities. At any time and from time to time after the execution and delivery of this Indenture, the Issuer may deliver Securities of any series
executed by the Issuer to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver such Securities to or upon the written order of the Issuer, signed by any two officers of the Issuer authorized by the Board to
execute any such order, without any further action by the Issuer. In authenticating such Securities and accepting the additional responsibilities under this Indenture in relation to such Securities the Trustee shall receive, and (subject to
Section 5.01) shall be fully protected in relying upon:
(a) a certified copy of any resolution or resolutions of the
Board authorizing the action taken pursuant to the resolution or resolutions delivered under clause 2.04(b) below;
(b) a copy
of any resolution or resolutions of the Board relating to such series, in each case certified by the Secretary or an Assistant Secretary of the Issuer;
(c) an executed supplemental indenture, if any;
(d) an Officers
Certificate setting forth the form and terms of the Securities as required pursuant to Sections 2.01 and 2.03, respectively and prepared in accordance with Section 10.05;
(e) an Opinion of Counsel, prepared in accordance with Section 10.05,
(i) to the effect that the form or forms and terms of such Securities have been established by or pursuant to a resolution of the Board or by a supplemental indenture as permitted by Sections 2.01 and
2.03 in conformity with the provisions of this Indenture;
(ii) to the effect that such Securities, when
authenticated and delivered by the Trustee and issued by the Issuer in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and binding obligations of the Issuer; and
(iii) covering such other matters as the Trustee may reasonably request.
The Trustee shall have the right to decline to authenticate and deliver any Securities under this Section if the Trustee, being advised
by counsel, determines that such action may not lawfully be taken by the Issuer or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
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Section 2.05. Execution of Securities. The Securities shall be signed on behalf
of the Issuer by any two officers of the Issuer authorized by the Board to execute such Securities, which Securities may, but need not, be attested. Such signatures may be the manual or facsimile signatures of the present or any future such
officers. Typographical and other minor errors or defects in any such signature shall not affect the validity or enforceability of any Security that has been duly authenticated and delivered by the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities shall cease to be such officer before the Security so
signed shall be authenticated and delivered by the Trustee or disposed of by the Issuer, such Security nevertheless may be authenticated and delivered or disposed of as though the person who signed such Security had not ceased to be such officer of
the Issuer; and any Security may be signed on behalf of the Issuer by such persons as, at the actual date of the execution of such Security, shall be the proper officers of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
Section 2.06. Certificate of Authorization. Only such
Securities as shall bear thereon a certificate of authentication substantially in the form hereinbefore recited, executed by the Trustee by the manual signature of one of its authorized officers, shall be entitled to the benefits of this Indenture
or be valid or obligatory for any purpose. Such certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence that the Security so authenticated has been duly authenticated and delivered hereunder and that the
holder is entitled to the benefits of this Indenture.
Section 2.07. Denomination and Date of Securities; Payments of
Interest. The Securities shall be issuable as registered securities without coupons and in denominations as shall be specified as contemplated by Section 2.03. In the absence of any such specification with respect to the Securities of any
series, the Securities of such series shall be issuable in denominations of $1,000 and any multiple thereof. The Securities shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plan as the officers of the
Issuer executing the same may determine with the approval of the Trustee as evidenced by the execution and authentication thereof.
Each Security shall be dated the date of its authentication, shall bear interest, if any, from the date and shall be payable on the dates, in each case, which shall be specified as contemplated by
Section 2.03.
The person in whose name any Security of any series is registered at the close of business on any record
date applicable to a particular series with respect to any interest payment date for such series shall be entitled to receive the interest, if any, payable on such interest payment date notwithstanding any transfer or exchange of such Security
subsequent to the record date and prior to such interest payment date, except if and to the extent the Issuer and the Guarantor shall default in the payment of the interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding Securities for such series are registered at the close of business on a subsequent record date (which shall be not less than five Business Days prior to the date of payment
of such defaulted interest) established by notice given by mail by or on behalf of the Issuer or the
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Guarantor to the holders of Securities not less than 15 days preceding such subsequent record date. The term record date as used with respect to any interest payment date (except a
date for payment of defaulted interest) shall mean the date specified as such in the terms of the Securities of any particular series, or, if no such date is so specified, if such interest payment date is the first day of a calendar month, the 15th
day of the next preceding calendar month or, if such interest payment date is the 15th day of a calendar month, the first day of such calendar month, in either case whether or not such record date is a Business Day.
Section 2.08. Registration, Transfer and Exchange. The Issuer will keep or cause to be kept at each office or agency to be
maintained for the purpose as provided in Section 3.02 a register or registers in which, subject to such reasonable regulations as it may prescribe, it will register, and will register the transfer of, Securities as in this Article provided.
Such register shall be in written form in the English language or in any other form capable of being converted into such form within a reasonable time. At all reasonable times such register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Security of any series at any such office or agency to be
maintained for the purpose as provided in Section 3.02, the Issuer shall execute and the Trustee shall authenticate and deliver in the name of the transferee or transferees a new Security or Securities of the same series in authorized
denominations for a like aggregate principal amount.
Any Security or Securities of any series may be exchanged for a Security
or Securities of the same series in other authorized denominations, in an equal aggregate principal amount. Securities of any series to be exchanged shall be surrendered at any office or agency to be maintained by the Issuer for the purpose as
provided in Section 3.02, and the Issuer shall execute and the Trustee shall authenticate and deliver in exchange therefor the Security or Securities of the same series which the Securityholder making the exchange shall be entitled to receive,
bearing numbers not contemporaneously outstanding.
All Securities presented for registration of transfer, exchange,
redemption or payment shall (if so required by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee duly executed by, the holder or
his attorney duly authorized in writing.
The Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any exchange or registration of transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of any series for a period of 15 days next preceding the first mailing of notice of redemption of Securities
of such series to be redeemed, (b) any Securities selected, called or being called for redemption except, in the case of any Security where notice has been given that such Security is to be redeemed in part, the portion thereof not so to be
redeemed, or (c) any Securities of any series between a record date and the next succeeding payment date.
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All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such transfer or exchange.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on transfer imposed under this Indenture or under applicable law with respect to any
transfer of any interest in any Security (including any transfers between or among Depositary Participants or beneficial owners of interests in any Registered Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
Neither the Trustee nor any agent shall have any responsibility for any actions taken or not taken by the Depositary.
Section 2.09. Mutilated, Defaced, Destroyed, Lost and Stolen Securities. In case any temporary or definitive
Security shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in its discretion may execute, and upon the written request of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the same
series, bearing a number not contemporaneously outstanding, in exchange and substitution for the mutilated or defaced Security, or in lieu of and substitution for the Security so destroyed, lost or stolen. In every case the applicant for a
substitute Security shall furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee such security or indemnity as may be required by them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of such Security and of the ownership thereof in the case of mutilation or defacement shall surrender the Security to the Trustee or
such agent.
Upon the issuance of any substitute Security, the Issuer 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 or its agent) connected therewith. In case any Security which has matured or is about to mature or has
been called for redemption in full shall become mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of issuing a substitute Security, pay or authorize the payment of the same (without surrender thereof except in the case of
a mutilated or defaced Security), if the applicant for such payment shall furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee such security or indemnity as any of them may require to save
each of them harmless, and, in every case of destruction, loss or theft, the applicant shall also furnish to the Issuer, the Guarantor and the Trustee and any agent of the Issuer, the Guarantor or the Trustee evidence to their satisfaction of the
destruction, loss or theft of such Security and of the ownership thereof.
Every substitute Security of any series issued
pursuant to the provisions of this section by virtue of the fact that any such Security is destroyed, lost or stolen shall constitute an additional contractual obligation of the Issuer and the Guarantor, whether or not the destroyed, lost or stolen
Security shall be at any time enforceable by anyone and shall be entitled to all the
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benefits of (but shall be subject to all the limitations of rights set forth in) this Indenture equally and proportionately with any and all other Securities of such series duly authenticated and
delivered hereunder. All Securities shall be held and owned upon the express condition that, to the extent permitted by law, the foregoing provisions are exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost
or stolen Securities and shall preclude any and all other rights or remedies notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to the replacement or payment of negotiable instruments or other securities
without their surrender.
Section 2.10. Cancellation of Securities. All Securities surrendered for payment,
redemption, registration of transfer or exchange, or for credit against any payment in respect of a sinking or analogous fund, if surrendered to the Issuer or any agent of the Issuer or the Trustee, shall be delivered to the Trustee for cancellation
or, if surrendered to the Trustee, shall be cancelled by it; and no Securities shall be issued in lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee shall dispose of cancelled Securities held by it in
accordance with its procedures for the disposition of cancelled Securities and deliver a certificate of disposition to the Issuer upon request. If the Issuer shall acquire any of the Securities, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Securities unless and until the same are delivered to the Trustee for cancellation.
Section 2.11. Temporary Securities. Pending the preparation of definitive Securities for any series, the Issuer may execute and the Trustee shall authenticate and deliver temporary Securities
for such series (printed, lithographed, typewritten or otherwise reproduced, in each case in form satisfactory to the Trustee). Temporary Securities of any series shall be issuable as registered Securities without coupons, of any authorized
denomination, and substantially in the form of the definitive Securities of such series but with such omissions, insertions and variations as may be appropriate for temporary Securities, all as may be determined by the Issuer with the concurrence of
the Trustee. Temporary Securities may contain such reference to any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed by the Issuer and be authenticated by the Trustee upon the same conditions and in
substantially the same manner, and with like effect, as the definitive Securities. Without unreasonable delay the Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary Securities of such series may be
surrendered in exchange therefor without charge at each office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.02, and the Trustee shall authenticate and deliver in exchange for such temporary Securities of such
series a like aggregate principal amount of definitive Securities of the same series of authorized denominations. Until so exchanged, the temporary Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series unless otherwise established pursuant to Section 2.03.
Section 2.12. CUSIP
Numbers. The Issuer 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 and other notices to the Holders as a convenience to
Holders; provided, that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of a redemption and that reliance may be placed only on the
other identification numbers printed on the Securities, and any such redemption shall not be affected by any defect in or omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in the CUSIP
numbers.
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Section 2.13. Registered Global Securities. None of the Issuer, the Guarantor,
the Trustee or any Agent shall have any responsibility or obligation to any beneficial owner of an interest in a Registered Global Security, any members of, or a participant in, the Depositary (Agent Members) or other Person with
respect to the accuracy of the records of the Depositary or its nominee or any participant or Agent Member thereof, with respect to any ownership interest in a Registered Global Security or with respect to the delivery to any participant, Agent
Member, beneficial owner or other Person (other than the Depositary) of any notice or the payment of any amount or delivery of any Registered Global Security (or other security or property) under or with respect to such Registered Global Securities.
All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Registered Global Securities shall be given or made only to or upon the order of the registered Holders. The rights of beneficial
owners in any Registered Global Security shall be exercised only through the Depositary subject to the applicable rules and procedures of the Depositary. The Issuer, the Guarantor, the Trustee and each Agent may rely and shall be fully protected in
relying upon information furnished by the Depositary with respect to its Agent Members, participants and any beneficial owners.
ARTICLE 3
COVENANTS OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE
Section 3.01. Payment of Principal and Interest. The Issuer covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay or cause to be paid the
principal of, and interest on, each of the Securities of such series (together with any additional amounts payable pursuant to the terms of such Securities) at the place or places, at the respective times and in the manner provided in such
Securities. Subject to any other provisions that may be established pursuant to Section 2.03, the interest on Securities (together with any additional amounts payable pursuant to the terms of such Securities) shall be payable only to or upon
the written order of the Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks for such interest payable to or upon the written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium, interest or any other amounts on, or in respect of, any Security of any series or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of
additional amounts provided by the terms of such series established hereby or pursuant hereto to the extent that, in such context, additional amounts are, were or would be payable in respect thereof pursuant to such terms, and express mention of the
payment of additional amounts (if applicable) in any provision hereof shall not be construed as excluding the payment of additional amounts in those provisions hereof where such express mention is not made.
Section 3.02. Offices for Payments, etc. So long as any of the Securities remain outstanding, the Issuer will maintain in the
Borough of Manhattan, The City of New York, the
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following for each series: an office or agency (a) where the Securities may be presented for payment, (b) where the Securities may be presented for registration of transfer and for
exchange as in this Indenture or any supplemental indenture provided and (c) where notices and demands to or upon the Issuer in respect of the Securities or of this Indenture may be served. The Issuer will give to the Trustee written notice of
the location of any such office or agency and of any change of location thereof. Unless otherwise specified in accordance with Section 2.03, the Issuer hereby initially designates the Corporate Trust Office of the Trustee, as the office to be
maintained by it for each such purpose. In case the Issuer shall fail to so designate or maintain any such office or agency or shall fail to give such notice of the location or of any change in the location thereof, presentations and demands may be
made and notices may be served at the Corporate Trust Office.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series may be presented for payment, where the Securities of that series may be presented for exchange as provided in this Indenture and pursuant to Section 2.03 and where the Securities
of that series may be presented for registration of transfer as provided in this Indenture, and the Issuer may from time to time rescind any such designation, as the Issuer may deem desirable or expedient; provided, however, that no such designation
or rescission shall in any manner relieve the Issuer of its obligation to maintain the agencies provided for in this Section. The Issuer will give to the Trustee prompt written notice of any such designation or rescission thereof.
Section 3.03. Appointment to Fill a Vacancy in Office of Trustee. The Issuer, whenever necessary to avoid or fill a vacancy
in the office of Trustee, will appoint, in the manner provided in Section 5.09, a Trustee, so that there shall at all times be a Trustee with respect to each series of Securities hereunder.
Section 3.04. Paying Agents. Whenever the Issuer shall appoint a paying agent other than the Trustee with respect to the
Securities of any series, it will cause such paying agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the principal of or interest on the Securities of such
series (whether such sums have been paid to it by the Issuer, the Guarantor or by any other obligor on the Securities of such series) in trust for the benefit of the holders of the Securities of such series or of the Trustee,
(b) that it will give the Trustee notice of any failure by the Issuer (or by the Guarantor or any other obligor on the Securities of such
series) to make any payment of the principal of or interest on the Securities of such series when the same shall be due and payable, and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the Trustees written request at any time during the continuance of the failure referred to in clause 3.04(b) above.
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The Issuer will, on the Business Day prior to each due date of the principal of or interest
on the Securities of such series, deposit with the paying agent a sum in immediately available funds in United States dollars sufficient to pay such principal or interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will
promptly notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect
to the Securities of any Series, it will, on or before each due date of the principal of or interest on the Securities of such series, set aside, segregate and hold in trust for the benefit of the holders of the Securities of such series a sum
sufficient to pay such principal or interest so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this section to the contrary notwithstanding, the Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to one or more or all series of Securities
hereunder, or for any other reason, pay or cause to be paid to the Trustee all sums held in trust for any such series by the Issuer or any paying agent hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts
herein contained.
Anything in this section to the contrary notwithstanding, the agreement to hold sums in trust as provided
in this section is subject to the provisions of Sections 9.03 and 9.04.
For the avoidance of doubt, any paying agent
hereunder shall comply with applicable backup withholding tax and information reporting requirements under the U.S. Internal Revenue Code of 1986, as amended, and the U.S. Treasury Regulations promulgated thereunder with respect to payments made
under the Securities of any series (including, to the extent required, the collection of Internal Revenue Service Forms W-8 and W-9 and the filing of U.S. Internal Revenue Service Forms 1099 and 1096).
Section 3.05. Certificates of the Issuer and the Guarantor. The Issuer and the Guarantor will each furnish to the Trustee
within 120 days after the end of each fiscal year of the Issuer or the Guarantor, as the case may be, commencing on , an
Officers Certificate of the Issuer or the Guarantor, as the case may be, as to the signers knowledge of the Issuers or the Guarantors compliance with all conditions and covenants under the Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice provided under the Indenture). In the event an Officer of the Issuer comes to have actual knowledge of an Event of Default or an event which, with notice or the lapse of time
or both, would constitute an Event of Default, regardless of the date, the Issuer shall deliver an Officers Certificate to the Trustee specifying such Default and the nature and status thereof.
Section 3.06. Securityholders Lists. If and so long as the Trustee shall not be the Security registrar for the Securities of
any series, the Issuer will furnish or cause to be furnished to the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of the holders of the Securities of such series pursuant to Section 312 of the
Trust Indenture Act of 1939 (a) semi-annually not more than 15 days after each record date for the payment of interest on such Securities, as hereinabove specified, as of such record date and on dates to be determined pursuant to
Section 2.03 for non-interest bearing securities in each year, and (b) at such other times as the Trustee may request in writing, within 30 days after receipt by the Issuer of any such request as of a date not more than 15 days prior to
the time such information is furnished.
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Section 3.07. Reports by the Issuer. Each of the Issuer and the Guarantor
covenants to file with the Trustee, within 15 days after the Issuer or the Guarantor, as the case may be, is required to file the same with the Commission, copies of the annual reports and of the information, documents, and other reports that the
Issuer or the Guarantor may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934. Reports, information and documents filed by the Issuer or the Guarantor with the Commission
via the EDGAR system will be deemed filed with the Trustee for purposes of this Section 3.07 as of the time that such reports, information and documents are filed via EDGAR. Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers or the
Guarantors compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officers Certificates or Guarantors Officers Certificates, as applicable).
The Trustee shall have no obligation to determine if and when the reports, information and documents of the Issuer or the Guarantor are
filed with the Commission via the EDGAR system and available on the Commissions EDGAR website. If the Guarantor ceases to be a reporting company with the Commission, it shall provide the Trustee with prompt written notification at that time
and shall provide the Trustee with such reports, information and documents as set forth in this Section 3.07.
Section 3.08. Reports by the Trustee. Any Trustees report required under Section 313(a) of the Trust Indenture Act
of 1939 shall be transmitted on or before July 15 in each year following the date hereof, so long as any Securities are outstanding hereunder, and shall be dated as of a date convenient to the Trustee no more than 60 nor less than 45 days prior
thereto.
Section 3.09. Calculation of Original Issue Discount. The Issuer shall prepare and provide to the
Trustee on a timely basis any form required to be submitted by the Trustee on behalf of the Issuer with the Internal Revenue Service and the Holders of Securities relating to original issue discount, including, without limitation, Form 1099-OID or
any successor form.
ARTICLE 4
REMEDIES OF THE TRUSTEE AND
SECURITYHOLDERS ON EVENT OF DEFAULT
Section 4.01. Event of Default; Acceleration of Maturity, Waiver of Default. Unless otherwise established in accordance with
Section 2.03 or by any applicable supplemental indenture, Event of Default with respect to Securities of any series wherever used herein means each one of the following events which shall have occurred and be continuing
(whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) default in the payment of premium or principal in respect of the Securities;
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(b) default for more than 30 days in the payment of interest in respect of the Securities;
or
(c) the failure to perform or observe any other obligations under the Securities which failure continues for the period of
60 days next following service on the Issuer and the Guarantor of notice requiring the same to be remedied; or
(d) the entry
by a court having jurisdiction in the premises of:
(i) a decree or order for relief in respect of the Issuer
or the Guarantor in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law; or
(ii) a decree or order adjudging the Issuer or the Guarantor a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Issuer or the Guarantor under any applicable U.S. federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial
part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days; or
(e) the commencement by the Issuer or the Guarantor of a voluntary case or proceeding under any applicable U.S. federal or state
bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by the Issuer to the entry of a decree or order for relief in respect of the Issuer or the
Guarantor in an involuntary case or proceeding under any applicable U.S. federal or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against the Issuer or the
Guarantor, or the filing by the Issuer or the Guarantor of a petition or answer or consent seeking reorganization or relief under any applicable U.S. federal or state law, or the consent by the Issuer or the Guarantor to the filing of such petition
or to the appointment of or the taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Issuer or the Guarantor or of any substantial part of its property, or the making by the Issuer
or the Guarantor of an assignment for the benefit of creditors, or the admission by the Issuer or the Guarantor in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Issuer or the
Guarantor expressly in furtherance of any such action; or
(f) any other Event of Default provided in the supplemental
indenture or resolution of the Board under which such series of Securities is issued or in the form of Security for such series.
Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(a), 4.01(b), 4.01(c), or 4.01(f) above (if the Event of Default under clauses 4.01(c)
or 4.01(f) is with respect to less than all series of Securities then
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Outstanding) occurs and is continuing, then, and in each and every such case, except for any series the principal of which shall have already become due and payable, either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Securities of all series affected thereby then Outstanding hereunder (treated as one class) by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by
Securityholders), may declare the entire principal (or, if the Securities of any such affected series are Original Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) of all Securities of
such affected series and the interest accrued thereon, if any, to be due and payable immediately, and upon any such declaration the same shall become immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture,
if an Event of Default described in clauses 4.01(c) or 4.01(f) (if the Event of Default under clauses 4.01(c) or 4.01(f) is with respect to all series of Securities at the time Outstanding) occurs and is continuing, then and in each and every such
case, unless the principal of all the Securities shall have already become due and payable, either the Trustee or the holders of not less than 25% in aggregate principal amount of all the then Outstanding Securities hereunder (treated as one class)
for which any applicable supplemental indenture does not prevent acceleration under the relevant circumstances, by notice in writing to the Issuer and the Guarantor (and to the Trustee if given by Securityholders), may declare the entire principal
(or, if any Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of all the Securities then Outstanding and interest accrued thereon, if any, to be due and payable immediately,
and upon any such declaration the same shall become immediately due and payable. Unless otherwise set forth in any applicable supplemental indenture, if an Event of Default described in clauses 4.01(d) or 4.01(e) occurs and is continuing, then the
principal and accrued and unpaid interest, and premium if any, with respect to any Securities then Outstanding 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.
The foregoing provisions, however, are subject to the condition that if, at any time after the principal (or, if the
Securities are Original Issue Discount Securities, such portion of the principal as may be specified in the terms thereof) of the Securities of any series (or of all the Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have been obtained or entered as hereinafter provided, the Issuer or the Guarantor shall pay or shall deposit with the Trustee a sum sufficient to pay all matured installments
of interest upon all the Securities of such series (or of all the Securities, as the case may be) and the principal of any and all Securities of such series (or of all the Securities, as the case may be) which shall have become due otherwise than by
acceleration (with interest upon such principal and, to the extent that payment of such interest is enforceable under applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such series (or at the respective rates of interest or Yields to Maturity of all the Securities, as the case may be) to the date of such payment or deposit) and such amount as shall
be sufficient to cover reasonable compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee except as a result of negligence or bad faith, and if any and
all Events of Default under the Indenture, other than the non-payment of the principal of Securities which shall have become due by acceleration, shall have been cured, waived or otherwise remedied as provided herein, then and in every such case the
holders of a majority in aggregate principal amount of all the Securities of each such
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series (or of all the Securities, as the case may be) then Outstanding (in each case treated as one class), by written notice to the Issuer, the Guarantor and the Trustee, may waive all defaults
with respect to each such series (or with respect to all the Securities, as the case may be) and rescind and annul such declaration and its consequences, but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of
any Original Issue Discount Securities shall have been accelerated and declared due and payable pursuant to the provisions hereof, then, from and after such declaration, unless such declaration has been rescinded and annulled, the principal amount
of such Original Issue Discount Securities shall be deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon and all other amounts owing thereunder, shall constitute payment in full of such Original Issue Discount Securities.
Section 4.02. Collection of Indebtedness by Trustee; Trustee May Prove Debt. Each of the Issuer and the Guarantor covenants
that (a) in case default shall be made in the payment of any installment of interest on any of the Securities of any series when such interest shall have become due and payable, and such default shall have continued for a period of 30 days or
(b) in case default shall be made in the payment of all or any part of the principal of any of the Securities of any series when the same shall have become due and payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer or the Guarantor, as the case may be, will pay to the Trustee for the benefit of the Holders of the Securities of such series the whole amount that then shall
have become due and payable on all Securities of such series for principal or interest, as the case may be (with interest to the date of such payment upon the overdue principal and, to the extent that payment of such interest is enforceable under
applicable law, on overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such series); and in addition thereto, such further
amount as shall be sufficient to cover the costs and expenses of collection, including reasonable compensation to the Trustee and each predecessor Trustee, their respective agents, attorneys and counsel, and any expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a result of its negligence or bad faith.
Until
such demand is made by the Trustee, the Issuer may pay the principal of and interest on the Securities of any series to the registered Holders, whether or not the principal of and interest on the Securities of such series be overdue.
In case the Issuer or the Guarantor shall fail forthwith to pay such amounts upon such demand, the Trustee, in its own name and as
trustee of an express trust, shall be entitled and empowered to institute any action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may prosecute any such action or proceedings to judgment or final decree,
and may enforce any such judgment or final decree against the Issuer or the Guarantor or other obligor upon such Securities and collect in the manner provided by law out of the property of the Issuer or the Guarantor or other obligor upon such
Securities, wherever situated, the moneys adjudged or decreed to be payable.
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In case there shall be pending proceedings relative to the Issuer, the Guarantor or any
other obligor upon the Securities under Title 11 of the United States Code or any other applicable federal or state bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken possession of the Issuer or the Guarantor or its property or such other obligor, or in case of any other comparable judicial proceedings relative to the Issuer, the Guarantor or
other obligor upon the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor, the Trustee, irrespective of whether the principal of any Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand pursuant to the provisions of this Section, shall be entitled and empowered, by intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest (or, if the Securities of any series are Original
Issue Discount Securities, such portion of the principal amount as may be specified in the terms of such series) owing and unpaid in respect of the Securities of any series, and to file such other papers or documents as may be necessary or advisable
in order to have the claims of the Trustee (including any claim for reasonable compensation to the Trustee and each predecessor Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee, except as a result of negligence or bad faith) and of the Securityholders allowed in any judicial proceedings relative to the Issuer, the Guarantor or other obligor upon
the Securities of any series, or to the creditors or property of the Issuer, the Guarantor or such other obligor,
(b) unless
prohibited by applicable law and regulations, to vote on behalf of the holders of the Securities of any series in any election of a trustee or a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or insolvency
proceedings or person performing similar functions in comparable proceedings, and
(c) to collect and receive any moneys or
other property payable or deliverable on any such claims, and to distribute all amounts received with respect to the claims of the Securityholders and of the Trustee on their behalf; and any trustee, receiver, or liquidator, custodian or other
similar official is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making of payments directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee, each predecessor Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except in the event of a determination of its own negligence or bad faith.
Nothing herein contained shall
be deemed to authorize the Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Securityholder any plan or reorganization, arrangement, adjustment or composition affecting the Securities of any series or
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the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder in any such proceeding except, as aforesaid, to vote for the election of a
trustee in bankruptcy or similar person.
All rights of action and of asserting claims under this Indenture, or under any of
the Securities, may be enforced by the Trustee without the possession of any of the Securities or the production thereof on any trial or other proceedings relative thereto, and any such action or proceedings instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Trustee, each predecessor Trustee and their respective agents and attorneys, shall be
for the ratable benefit of the holders of the Securities in respect of which such action was taken.
In any proceedings
brought by the Trustee (and also any proceedings involving the interpretation of any provision of this Indenture to which the Trustee shall be a party) the Trustee shall be held to represent all the holders of the Securities in respect to which such
action was taken, and it shall not be necessary to make any holders of such Securities parties to any such proceedings.
Section 4.03. Application of Proceeds. Subject to the subordination provisions in this Indenture, any moneys collected by the
Trustee pursuant to this Article in respect of any series shall be applied in the following order at the date or dates fixed by the Trustee and, in case of the distribution of such moneys on account of principal or interest, upon presentation of the
several Securities in respect of which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing Securities of such series in reduced principal amounts in exchange for the presented Securities of like series if
only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such
series in respect of which monies have been collected, including reasonable compensation to the Trustee and each predecessor Trustee and their respective agents and attorneys and of all expenses and liabilities incurred, and all advances made, by
the Trustee and each predecessor Trustee except in the event of a determination of its own negligence or bad faith;
SECOND:
In case the principal of the Securities of such series in respect of which moneys have been collected shall not have become and be then due and payable, to the payment of interest on the Securities of such series in default in the order of the
maturity of the installments of such interest, with interest (to the extent that such interest has been collected by the Trustee) upon the overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such payments to be made ratably to the persons entitled thereto, without discrimination or preference;
THIRD: In case the principal of the Securities of such series in respect of which moneys have been collected shall have become and shall be then due and payable, to the payment of the whole amount then
owing and unpaid upon all the Securities of such series for principal and interest, with interest upon the overdue principal, and (to the extent that such
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interest has been collected by the Trustee) upon overdue installments of interest at the same rate as the rate of interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in the Securities of such series; and in case such moneys shall be insufficient to pay in full the whole amount so due and unpaid upon the Securities of such series, then to the payment of such principal and interest or Yield to Maturity,
without preference or priority of principal over interest or Yield to Maturity, or of interest or Yield to Maturity over principal, or of any installment of interest over any other installment of interest, or of any Security of such series over any
other Security of such series, ratably to the aggregate of such principal and accrued and unpaid interest or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the Issuer or as a court of competent jurisdiction may direct.
Section 4.04. Suits for Enforcement. In case an Event of Default has occurred, has not been waived and is continuing, the Trustee may in its discretion proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem necessary to protect and enforce any of such rights, either at law or in equity or in bankruptcy or otherwise, whether for the specific
enforcement of any covenant or agreement contained in this Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 4.05. Restoration of Rights on Abandonment of Proceeding. In case the Trustee shall have proceeded to enforce any
right under this Indenture and such proceedings shall have been discontinued or abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every such case the Issuer and the Trustee shall be restored respectively
to their former positions and rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the Securityholders shall continue as though no such proceedings had been taken.
Section 4.06. Limitations on Suits by Securityholder. No holder of any Security of any series shall have any right by virtue
or by availing of any provision of this Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise upon or under or with respect to this Indenture, or for the appointment of a trustee, receiver, liquidator,
custodian or other similar official or for any other remedy hereunder, unless such Holder previously shall have given to the Trustee written notice of default and of the continuance thereof, as hereinbefore provided, and unless also the Holders of
not less than 25% in aggregate principal amount of the Securities of each affected series then Outstanding (treated as a single class) shall have made written request upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee indemnity reasonably satisfactory to it against the costs, expenses and liabilities to be incurred therein or thereby and the Trustee for 60 days after its receipt of such notice, request and
offer of indemnity shall have failed to institute any such action or proceeding and no direction inconsistent with such written request shall have been given to the Trustee pursuant to Section 4.09; it being understood and intended, and being
expressly covenanted by the taker and Holder of every Security with every other taker and Holder and the Trustee, that no one or more Holders of Securities of any series shall have any right in any manner whatever by virtue or by availing of any
provision of this
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Indenture to affect, disturb or prejudice the rights of any other such Holder of Securities, or to obtain or seek to obtain priority over or preference to any other such Holder or to enforce any
right under this Indenture, except in the manner herein provided and for the equal, ratable and common benefit of all Holders of Securities of the applicable series. For the protection and enforcement of the provisions of this Section, each and
every Securityholder and the Trustee shall be entitled to such relief as can be given either at law or in equity.
Section 4.07. Unconditional Right of Securityholders to Institute Certain Suits. Notwithstanding any other provision in this
Indenture and any provision of any Security, the right of any Holder of any Security to receive payment of the principal of and interest on such Security on or after the respective due dates expressed in such Security, or to institute 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 4.08. Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default. Except as provided in Section 4.06, no right or remedy herein conferred upon or reserved to the
Trustee or to the Securityholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Securityholder to exercise any right or power accruing upon any Event of Default occurring
and continuing as aforesaid shall impair any such right or power or shall be construed to be a waiver of any such Event of Default or an acquiescence therein; and, subject to Section 4.06, every power and remedy given by this Indenture or by
law to the Trustee or to the Securityholders may be exercised from time to time, and as often as shall be deemed expedient, by the Trustee or by the Securityholders.
Section 4.09. Control by Securityholders. The Holders of a majority in aggregate principal amount of the Securities of each series affected (with all such series voting as a single class) at
the time Outstanding shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Securities of such
series by this Indenture; provided that such direction shall not be otherwise than in accordance with law and the provisions of this Indenture and provided further that (subject to the provisions of Section 5.01) the Trustee shall have the
right to decline to follow any such direction if the Trustee shall determine that the action or proceeding so directed may not lawfully be taken or if the Trustee in good faith shall determine that the action or proceedings so directed would involve
the Trustee in personal liability or if the Trustee in good faith shall so determine that the actions or forebearances specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders of the Securities of all series
so affected not joining in the giving of said direction, it being understood that (subject to Section 5.01) the Trustee shall have no duty to ascertain whether or not such actions or forebearances are unduly prejudicial to such Holders.
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Nothing in this Indenture shall impair the right of the Trustee in its discretion to take
any action deemed proper by the Trustee and which is not inconsistent with such direction or directions by Securityholders.
Section 4.10. Waiver of Past Defaults. Prior to the acceleration of the maturity of any Securities as provided in
Section 4.01, the Holders of a majority in aggregate principal amount of the Securities of all series at the time Outstanding with respect to which an Event of Default shall have occurred and be continuing (voting as a single class) may on
behalf of the Holders of all such Securities waive any past default or Event of Default described in Section 4.01 and its consequences, except a default in respect of a covenant or provision hereof which cannot be modified or amended without
the consent of the Holder of each Security affected. In the case of any such waiver, the Issuer, the Guarantor, the Trustee and the Holders of all such Securities shall be restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Upon any such waiver,
such default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured, and not to have occurred 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 4.11. Trustee to Give Notice of Default, But May Withhold in Certain Circumstances. The Trustee shall give to the
Securityholders of any series, as the names and addresses of such Holders appear on the registry books, notice by mail of all defaults known to the Trustee which have occurred with respect to such series, such notice to be transmitted within 90 days
after the occurrence thereof, unless such defaults shall have been cured before the giving of such notice (the term default or defaults for the purposes of this section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of Default); provided that, except in the case of default in the payment of the principal of or interest on any of the Securities of such series, or in the payment of any
sinking or purchase fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines that the withholding of such notice is in the interests of the Securityholders of such series.
Section 4.12. Right of Court to Require Filing of Undertaking to Pay Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to
have agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group of
Securityholders of any series
25
holding in the aggregate more than 10% in aggregate principal amount of the Securities of such series, or, in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the
suit relates to Securities of more than one but less than all series), 10% in aggregate principal amount of Securities Outstanding affected thereby, or in the case of any suit relating to or arising under clauses 4.01(c) or 4.01(f) (if the suit
relates to all the Securities then Outstanding), 4.01(d) or 4.01(e), 10% in aggregate principal amount of all Securities Outstanding, or to any suit instituted by any Securityholder for the enforcement of the payment of the principal of or interest
on any Security on or after the due date expressed in such Security.
ARTICLE 5
CONCERNING THE TRUSTEE
Section 5.01. Duties and Responsibilities of the Trustee; During Default; Prior to Default. With respect to the Holders of any series of Securities issued hereunder, the Trustee, prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after the curing or waiving of all Events of Default which may have occurred with respect to such series, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of Default with respect to the Securities of a series has occurred (which has not been cured or waived) the Trustee shall exercise with respect to such series of Securities
such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their exercise, as a prudent person would exercise or use under the circumstances in the conduct of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default with respect to
the Securities of any series and after the curing or waiving of all such Events of Default with respect to such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of any Series shall be determined solely by the express provisions of this Indenture, and the Trustee shall not be liable
except for the performance of such duties and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon any statements, certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture; but in the case of any such statements, certificates or
opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not they conform to the requirements of this Indenture (but need not
confirm or investigate the accuracy of mathematical calculations or other facts stated therein);
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(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction of the holders pursuant to Section 4.09 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.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur personal
financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 5.01 are in furtherance of and subject to Sections 315 and 316
of the Trust Indenture Act of 1939.
Section 5.02. Certain Rights of the Trustee. In furtherance of and subject to
the Trust Indenture Act of 1939, and subject to Section 5.01:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, Officers Certificate, Guarantors Officers Certificate or any other certificate, statement, instrument, opinion, report, notice, request, consent, order, bond,
debenture, note, coupon, security or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer or the Guarantor mentioned herein shall be sufficiently evidenced by an Officers Certificate or a Guarantors Officers
Certificate, as the case may be, (unless other evidence in respect thereof be herein specifically prescribed); and any resolution of the Board or of the Guarantors Board of Directors may be evidenced to the Trustee by a copy thereof certified
by the secretary or an assistant secretary of the Issuer or the Guarantor, as the case may be;
(c) the Trustee may consult
with counsel of its selection and any advice or Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in accordance with such
advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers vested in
it by this Indenture at the request, order or direction of any of the Securityholders pursuant to the provisions of this Indenture, unless such Securityholders shall have offered to the Trustee security or indemnity satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or thereby;
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(e) the Trustee shall not be liable for any action taken or omitted by it in good faith and
believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Indenture;
(f) 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by the holders of not less than a majority in aggregate principal amount of the Securities of all series affected then outstanding; provided that, if the payment within a
reasonable time to the Trustee of the costs, expenses or liabilities likely to be incurred by it in the making of such investigation is, in the opinion of the Trustee, not reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require indemnity satisfactory to it against such expenses or liabilities as a condition to proceeding; the reasonable expenses of every such investigation shall be paid by the Issuer or, if paid by the Trustee or
any predecessor trustee, shall be repaid by the Issuer promptly upon demand;
(g) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys not regularly in its employ and the Trustee shall not be responsible for any misconduct or negligence on the part of any such agent or attorney
appointed with due care by it hereunder;
(h) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon
an Officers Certificate or a Guarantors Officers Certificate, as the case may be;
(i) the Trustee shall not
be deemed to have notice of any Event of Default or an event which, with notice or lapse of time or both, would constitute an Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee
in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder;
(k) the Trustee
may request that the Issuer or the Guarantor deliver an Officers Certificate or a Guarantors Officers Certificate, as the case may be, setting forth the names of individuals and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers Certificate or Guarantors Officers Certificate, as the case may be, may be signed by any person authorized to sign an Officers Certificate or a Guarantors
Officers Certificate, as the case may be, including any person specified as so authorized in any such certificate previously delivered and not superseded;
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(l) in no event shall the Trustee be responsible or liable for special, indirect,
incidental, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of
action;
(m) in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural
catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted
practices in the banking industry to resume performance as soon as practicable under the circumstances; and
(n) neither the
Trustee nor any Agent shall have any obligation or duty to monitor, determine or inquire as to compliance by the Issuer, the Guarantor or the Securityholders with or with respect to any securities or tax laws (including but not limited to any United
States federal or state or other securities or tax laws), or, except as specifically provided herein, obtain documentation on any transfers or exchanges of the Securities of any series. Nothing in this provision shall be deemed to limit the
Trustees duty to comply with any obligations it may have pursuant to applicable law.
Section 5.03. Trustee Not
Responsible for Recitals, Disposition of Securities or Application of Proceeds Thereof. The recitals contained herein and in the Securities, except the Trustees certificates of authentication, shall be taken as the statements of the Issuer
or the Guarantor, as the case may be, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representation as to the validity or sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Issuer of any of the Securities or of the proceeds thereof.
Section 5.04.
Trustee and Agents May Hold Securities; Collections, etc. The Trustee or any agent of the Issuer, the Guarantor or the Trustee, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it
would have if it were not the Trustee or such agent and may otherwise deal with the Issuer or the Guarantor and receive, collect, hold and retain collections from the Issuer or the Guarantor with the same rights it would have if it were not the
Trustee or such agent.
Section 5.05. Moneys Held by Trustee. Subject to the provisions of Section 9.04
hereof, all moneys received by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes for which they were received, but need not be segregated from other funds except to the extent required by mandatory
provisions of law. All such moneys shall remain uninvested and neither the Trustee nor any agent of the Issuer or the Trustee shall be under any liability for interest on any moneys received by it hereunder.
Section 5.06. Compensation and Indemnification of Trustee and its Prior Claim. The Issuer covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, compensation as the Issuer and the Trustee shall from time to time agree in writing
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(which shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) and the Issuer covenants and agrees to pay or reimburse the Trustee and each
predecessor Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of it in accordance with any of the provisions of this Indenture (including the reasonable compensation and the expenses
and disbursements of its counsel and of all agents and other persons not regularly in its employ) except to the extent any such expense, disbursement or advance shall be determined to have been caused by its own negligence or bad faith. The Issuer
also covenants to indemnify the Trustee and each predecessor Trustee and their agents, officers, directors and employees for, and to hold each of them harmless against, any loss, liability or expense arising out of or in connection with the
acceptance or administration of this Indenture or the trusts hereunder and the performance of its duties hereunder, including the costs and expenses of defending itself against or investigating any claim of liability in the premises, except to the
extent such loss, liability or expense shall be determined to have been caused by the negligence or bad faith of the Trustee or such predecessor Trustee or their respective agents, officers, directors and employees. The obligations of the Issuer
under this section to compensate and indemnify the Trustee and each predecessor Trustee and to pay or reimburse the Trustee and each predecessor Trustee for expenses, disbursements and advances shall constitute additional indebtedness hereunder and
shall survive the payment in full of the Securities issued hereunder, the resignation or removal of the Trustee, or the satisfaction and discharge of this Indenture. Such additional indebtedness shall be a senior claim to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular Securities, and the Securities are hereby subordinated to such senior claim.
When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 4.01(d) or
Section 4.01(e), the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable federal or state bankruptcy,
insolvency or other similar law.
Section 5.07. Right of Trustee to Rely on Officers Certificate, etc.
Subject to Sections 5.01 and 5.02, whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary or desirable that a matter be proved or established prior to taking or suffering or omitting any action hereunder,
such matter may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to be conclusively proved and established by an Officers Certificate delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the provisions of this Indenture upon the faith thereof.
Section 5.08. Persons Eligible for Appointment as Trustee. The Trustee for each series of Securities hereunder shall at all
times be a corporation organized and doing business under the laws of the United States of America or the District of Columbia having a combined capital and surplus of at least $25,000,000, and which is eligible in accordance with the provisions of
Section 310(a) of the Trust Indenture Act of 1939. If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of a federal, state or District of Columbia supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such corporation shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published.
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Section 5.09. Resignation and Removal; Appointment of Successor Trustee.
(a) The Trustee, or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series of Securities by giving written notice of resignation to the Issuer and by mailing notice thereof by first class
mail to Holders of the applicable series of Securities at their last addresses as they shall appear on the Security register. Upon receiving such notice of resignation, the Issuer shall promptly appoint a successor trustee or trustees with respect
to the applicable series by written instrument in duplicate, executed by authority of the Board, one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no successor trustee
shall have been so appointed with respect to any series and have accepted appointment within 30 days after the mailing of such notice of resignation, the resigning trustee at the Issuers expense may petition any court of competent jurisdiction
for the appointment of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or Securities of the applicable series for at least six months may, subject to the provisions of Section 4.12, on behalf of himself
and all others similarly situated, petition any such court for the appointment of a successor trustee. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by the Issuer or by any Securityholder who has been a bona fide Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions of Section 310(a) of the Trust
Indenture Act of 1939 and shall fail to resign after written request therefor by the Issuer or by any Securityholder; or
(iii) the Trustee shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver or liquidator of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee for such series by written instrument, in duplicate, executed
by order of the Board of the Issuer, one copy of which instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to Section 315(e) of the Trust Indenture Act of 1939, any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least six months may on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee with respect to such series. Such court may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
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(c) The Holders of a majority in aggregate principal amount of the Securities of each series
at the time outstanding may at any time remove the Trustee with respect to Securities of such series and appoint a successor trustee with respect to the Securities of such series by delivering to the Trustee so removed, to the successor trustee so
appointed and to the Issuer the evidence provided for in Section 6.01 of the action in that regard taken by the Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any appointment of a successor trustee with respect to such series pursuant to any of the provisions of this Section 5.09
shall become effective upon acceptance of appointment by the successor trustee as provided in Section 5.10.
Section 5.10. Acceptance of Appointment by Successor Trustee. Any successor trustee appointed as provided in
Section 5.09 shall execute and deliver to the Issuer and to its predecessor trustee an instrument accepting such appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with all rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as
if originally named as trustee for such series hereunder; but, nevertheless, on the written request of the Issuer or of the successor trustee, upon payment of its charges then unpaid, the trustee ceasing to act shall, subject to Section 9.04,
pay over to the successor trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument transferring to such successor trustee all such rights, powers, duties and obligations. Upon request of any such successor
trustee, the Issuer shall execute any and all instruments in writing for more fully and certainly vesting in and confirming to such successor trustee all such rights and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim
upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions of Section 5.06.
If a successor trustee is appointed with respect to the Securities of one or more (but not all) series, the Issuer, the predecessor Trustee and each successor trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the predecessor Trustee with
respect to the Securities of any series as to which the predecessor Trustee is not retiring shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall be necessary to provide
for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each such trustee
shall be trustee of a trust or trusts under separate indentures.
Upon acceptance of appointment by any successor trustee as
provided in this Section 5.10, the Issuer shall mail notice thereof by first-class mail to the Holders of Securities of any series for which such successor trustee is acting as trustee at their last addresses as they shall appear in the
Security register. If the acceptance of appointment is substantially contemporaneous with the resignation, then the notice called for by the preceding sentence may be combined with the notice called for by Section 5.09. If the Issuer fails to
mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Issuer.
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Section 5.11. Merger, Conversion, Consolidation or Succession to Business of
Trustee. Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be eligible under the provisions of Section 5.08, without the execution
or filing of any paper or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this Indenture any of the Securities of any series shall have been authenticated but not delivered, any such
successor to the Trustee may adopt the certificate of authentication of any predecessor Trustee and deliver such Securities so authenticated; and, in case at that time any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of any predecessor hereunder or in the name of the successor Trustee; and in all such cases such certificate shall have the full force which it is anywhere in the
Securities of such series or in this Indenture provided that the certificate of the Trustee shall have; provided, that the right to adopt the certificate of authentication of any predecessor Trustee or to authenticate Securities of any series in the
name of any predecessor Trustee shall apply only to its successor or successors by merger, conversion or consolidation.
ARTICLE 6
CONCERNING THE SECURITYHOLDERS
Section 6.01. Evidence of Action Taken by Securityholders. Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or
taken by a specified percentage in principal amount of the Securityholders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Securityholders in
person or by agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Sections 5.01 and 5.02) conclusive in favor of the Trustee and the Issuer, if made in the manner provided in this Article.
Section 6.02. Proof of Execution of Instruments and of Holding of Securities; Record Date. Subject to Sections 5.01 and 5.02,
the execution of any instrument by a Securityholder or his agent or proxy may be proved in accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Securities shall be proved by the Security register or by a certificate of the registrar thereof. The Issuer may set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent
to any action referred to in Section 6.01, which record date may be set at any time or from time to time by notice to the Trustee, for
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any date or dates (in the case of any adjournment or reconsideration) not more than 60 days nor less than five days prior to the proposed date of such vote or consent, and thereafter,
notwithstanding any other provisions hereof, only holders of Securities of such series of record on such record date shall be entitled to so vote or give such consent or revoke such vote or consent.
Section 6.03. Holders to be Treated as Owners. The Issuer, the Guarantor, the Trustee and any agent of the Issuer, the
Guarantor or the Trustee may deem and treat the person in whose name any Security shall be registered upon the Security register for such series as the absolute owner of such Security (whether or not such Security shall be overdue and
notwithstanding any notation of ownership or other writing thereon) for the purpose of receiving payment of or on account of the principal of and, subject to the provisions of this Indenture, interest on such Security and for all other purposes; and
none of the Issuer, the Guarantor, the Trustee or any agent of the Issuer, the Guarantor or the Trustee shall be affected by any notice to the contrary. All such payments so made to any such person, or upon his order, shall be valid, and, to the
extent of the sum or sums so paid, effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Section 6.04. Securities Owned by Issuer Deemed Not Outstanding. In determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities of any or all series have concurred in any direction, consent or waiver under this Indenture, Securities which are owned by the Issuer or any other obligor on the Securities with respect to which
such determination is being made or by any person directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer or any other obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that for the purpose of determining whether the Trustee shall be protected in relying on any such direction, consent or waiver only
Securities which a Responsible Officer of the Trustee actually knows are so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgees right so to act with respect to such Securities and that the pledgee is not the Issuer or any other obligor upon the Securities or any person directly or indirectly controlling or controlled by or under direct or indirect
common control with the Issuer or any other obligor on the Securities. In case of a dispute as to such right, the advice of counsel shall be full protection in respect of any decision made by the Trustee in accordance with such advice. Upon request
of the Trustee, the Issuer shall furnish to the Trustee promptly an Officers Certificate listing and identifying all Securities, if any, known by the Issuer to be owned or held by or for the account of any of the above-described persons; and,
subject to Sections 5.01 and 5.02, the Trustee shall be entitled to accept such Officers 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 6.05. Right of Revocation of Action Taken. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 6.01, of the taking of any action by the Holders of the percentage in aggregate principal amount of the Securities of any or all series, as the case may be, specified in this
Indenture in connection with such action, any Holder of a Security the serial number of which is shown by the evidence to be included among the serial
34
numbers of the Securities the Holders of which have consented to such action may, by filing written notice at the Corporate Trust Office and upon proof of holding as provided in this Article,
revoke such action so far as concerns such Security. Except as aforesaid any such action taken by the Holder of any Security shall be conclusive and binding upon such Holder and upon all future Holders and owners of such Security and of any
Securities issued in exchange or substitution therefor or on registration of transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case may be, specified in this Indenture in connection with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all the Securities
affected by such action.
ARTICLE 7
SUPPLEMENTAL INDENTURES
Section 7.01. Supplemental Indentures without
Consent of Securityholders. The Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such action may be determined by officers of the
Issuer authorized thereby), and the Guarantor, when authorized by a resolution of the Guarantors Board of Directors, and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto for one or
more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another legal entity to the Issuer
or the Guarantor, as the case may be, or successive successions, and the assumption by the successor legal entity of the covenants, agreements and obligations of the Issuer or the Guarantor, as the case may be, pursuant to Article 8;
(c) to add to the covenants of the Issuer or the Guarantor such further covenants, restrictions, conditions or provisions as the Issuer,
the Guarantor and the Trustee shall consider to be for the protection of the Holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default in any such additional covenants, restrictions, conditions or provisions
an Event of Default permitting the enforcement of all or any of the several remedies provided in this Indenture as herein set forth; provided, that in respect of any such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may provide for an immediate enforcement upon such an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may limit the right of the Holders of a majority in aggregate principal amount of the Securities of such series to waive such an Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be
defective or inconsistent with any other provision contained herein or in any supplemental indenture; or to make such other provisions in
35
regard to matters or questions arising under this Indenture or under any supplemental indenture as the Issuer or the Guarantor may deem necessary or desirable and which shall not adversely affect
the interests of the Holders of the Securities in any material respect;
(e) to establish the form or terms of Securities of
any series as permitted by Sections 2.01 and 2.03; and
(f) to evidence the assumption by the Guarantor of all of the rights
and obligations of the Issuer hereunder with respect to a series of Securities and under the Securities of such series and the release of the Issuer from its liabilities hereunder and under such Securities as obligor on the Securities of such
series, all as provided in Section 12.06 hereof.
The Trustee is hereby authorized to join with the Issuer and the
Guarantor in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee shall not be obligated to enter into any such supplemental indenture which affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this section may be executed without the consent of the Holders of any of the
Securities at the time outstanding, notwithstanding any of the provisions of Section 7.02.
Section 7.02.
Supplemental Indentures with Consent of Securityholders. With the consent (evidenced as provided in Article 6) of the Holders of not less than a majority in aggregate principal amount of the Securities at the time Outstanding of all
series affected by such supplemental indenture (voting as one class), the Issuer, when authorized by a resolution of its Board (which resolutions may provide general authorization for such action and may provide that the specific terms of such
action may be determined by officers of the Issuer authorized thereby), and the Guarantor, when authorized by a resolution of the Guarantors Board of Directors, and the Trustee may, from time to time and at any time, enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying in any manner the rights of the Holders of
the Securities of each such series; provided, that no such supplemental indenture shall (a) (i) extend the final maturity of any Security, (ii) reduce the principal amount thereof, (iii) reduce the rate or extend the time of
payment of interest thereon, (iv) reduce any amount payable on redemption thereof, (v) make the principal thereof (including any amount in respect of original issue discount), or interest thereon payable in any coin or currency other than
that provided in the Securities or in accordance with the terms thereof, (vi) modify or amend any provisions for converting any currency into any other currency as provided in the Securities or in accordance with the terms thereof,
(vii) reduce the amount of the principal of an Original Issue Discount Security that would be due and payable upon an acceleration of the maturity thereof pursuant to Section 4.01 or the amount thereof provable in bankruptcy pursuant to
Section 4.02, (viii) modify or amend any provisions relating to the conversion or exchange of the Securities for securities of the Issuer or the Guarantor or of other entities or other property (or the cash value thereof), including the
determination of the amount of securities or other property (or cash) into which the Securities shall be converted or
36
exchanged, other than as provided in the antidilution provisions or other similar adjustment provisions of the Securities or otherwise in accordance with the terms thereof, or (ix) alter the
provisions of Section 10.11 or Section 10.13 or impair or affect the right of any Securityholder to institute suit for the payment thereof or, if the Securities provide therefor, any right of repayment at the option of the Securityholder,
in each case without the consent of the Holder of each Security so affected, or (b) reduce the aforesaid percentage of Securities of any series, the consent of the Holders of which is required for any such supplemental indenture, without the
consent of the Holders of each Security so affected.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of holders of Securities of such series, with respect to such covenant or
provision, shall be deemed not to affect the rights under this Indenture of the holders of Securities of any other series.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board (which resolutions may provide general authorization
for such action and may provide that the specific terms of such action may be determined by officers of the Issuer authorized thereby) certified by the secretary or an assistant secretary of the Issuer authorizing the execution of any such
supplemental indenture, and upon the filing with the Trustee of evidence of the consent of Securityholders as aforesaid and other documents, if any, required by Section 6.01, the Trustee shall join with the Issuer and the Guarantor in the
execution of such supplemental indenture unless such supplemental indenture affects the Trustees own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be obligated
to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this
section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Issuer, the Guarantor and the Trustee of any supplemental indenture pursuant to the provisions of this Section, the Trustee shall give notice thereof by (a) first
class mail to the Holders of Securities of each series affected thereby at their addresses as they shall appear on the registry books of the Issuer or (b) by any other means set forth in such supplemental indenture, setting forth in general
terms the substance of such supplemental indenture. Any failure of the Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
Section 7.03. Effect of Supplemental Indenture. Upon the execution of any supplemental indenture pursuant to the provisions
hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee, the Issuer, the Guarantor and
the Holders of Securities of each series affected thereby shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any and all purposes.
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Section 7.04. Documents to Be Given to Trustee. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby of the trusts created by this Indenture, the Trustee shall receive, and shall be fully protected in relying upon, an Officers
Certificate and an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which adversely
affects the Trustees own rights, duties or immunities under this Indenture or otherwise.
Section 7.05. Notation
on Securities in Respect of Supplemental Indentures. Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article may bear a notation in form approved by the
Trustee for such series as to any matter provided for by such supplemental indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Board, to any modification of this Indenture contained in any such supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in exchange for the Securities of such series then
Outstanding.
ARTICLE 8
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 8.01. Issuer May
Consolidate, etc., on Certain Terms. The Issuer covenants that it will not merge or consolidate with any other Person or sell or convey all or substantially all of its assets to any Person, unless (i) either the Issuer shall be the
continuing legal entity, or the successor legal entity or the Person which acquires by sale or conveyance substantially all the assets of the Issuer (if other than the Issuer) shall expressly assume the due and punctual payment of the principal of
and interest on all the Securities, according to their tenor, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Issuer, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and (ii) the Issuer or such successor legal entity, as the case may be, shall not, immediately after such merger or consolidation, or such sale
or conveyance, be in default in the performance of any such covenant or condition.
Section 8.02. Successor
Substituted. In case of any such consolidation, merger, sale or conveyance, and following such an assumption by the successor legal entity, all in the manner described in section 8.01, such successor legal entity shall succeed to and be
substituted for the Issuer, with the same effect as if it had been named herein. Such successor legal entity may cause to be signed, and may issue either in its own name or in the name of the Issuer prior to such succession any or all of the
Securities issuable hereunder which theretofore shall not have been signed by the Issuer and delivered to the Trustee; and, upon the order of such successor legal entity instead of the Issuer and subject to all the terms, conditions and limitations
in this Indenture prescribed, the Trustee shall authenticate and shall deliver any Securities which previously shall have been signed and delivered by the officers of the Issuer to the Trustee for authentication, and any Securities which such
successor legal entity thereafter shall cause to be
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signed and delivered to the Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore
or thereafter issued in accordance with the terms of this Indenture as though all of such Securities had been issued at the date of the execution hereof. Any required changes in phrasing and form (but not in substance) may be made in the Securities
thereafter to be issued as may be appropriate.
In the event of such assumption following any sale or conveyance in accordance
with section 8.01 and this section 8.02 (other than a conveyance by way of lease) the Issuer (including any successor legal entity that has been further substituted in accordance with section 8.01 and this section 8.02) shall be discharged from all
obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.
Section 8.03.
Guarantor May Consolidate, etc., on Certain Terms. The Guarantor covenants that it will not merge or consolidate with any other Person or sell, lease or convey all or substantially all of its assets to any other Person, unless (i) either
the Guarantor shall be the continuing legal entity, or the successor legal entity or the Person which acquires by sale, lease or conveyance substantially all the assets of the Guarantor (if other than the Guarantor) shall expressly assume the due
and punctual payment of the principal of and interest on all the Securities and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed or observed by the Guarantor, by supplemental
indenture satisfactory to the Trustee, executed and delivered to the Trustee by such successor legal entity, and (ii) the Guarantor, such Person or such successor legal entity, as the case may be, shall not, immediately after such merger or
consolidation, or such sale, lease or conveyance, be in default in the performance of any such covenant or condition.
Section 8.04. Successor Legal Entity Substituted for the Guarantor. In case of any such consolidation, merger, sale, lease or
conveyance, and following such an assumption by the successor legal entity, all in the manner described in section 8.03, such successor legal entity shall succeed to and be substituted for the Guarantor with the same effect as if it had been named
herein and any required changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
In the event of such assumption following any sale or conveyance in accordance with section 8.03 and this section 8.04 (other than a conveyance by way of lease) the Guarantor (including any successor
legal entity that has been further substituted in accordance with section 8.03 and this section 8.04) shall be discharged from all obligations and covenants under this Indenture and the Securities and may be liquidated and dissolved.
Section 8.05. Opinion of Counsel to Trustee. The Trustee, subject to the provisions of Sections 5.01 and 5.02, shall receive
an Opinion of Counsel, prepared in accordance with Section 10.05, as conclusive evidence that any such consolidation, merger, sale, lease or conveyance, and any such assumption, and any such liquidation or dissolution, complies with the
applicable provisions of this Indenture.
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ARTICLE 9
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 9.01.
Satisfaction and Discharge of Indenture. (a) If at any time (i) the Issuer or the Guarantor shall have paid or caused to be paid the principal of and interest on all the Securities of any series outstanding hereunder (other than
Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 2.09) as and when the same shall have become due and payable, or (ii) the Issuer or the Guarantor shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been replaced or paid as provided in
Section 2.09) or (iii) (A) all the securities of such series not theretofore delivered to the Trustee for cancellation shall have become due and payable, or are by their terms to become due and payable within one year or are to be
called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption, and (B) the Issuer or the Guarantor shall have irrevocably deposited or caused to be deposited with the Trustee as
trust funds the entire amount in cash (other than moneys repaid by the Trustee or any paying agent to the Issuer in accordance with Section 9.04) in the case of any series of Securities the payments on which may only be made in United States
dollars, direct obligations of the United States of America, backed by its full faith and credit (U.S. Government Obligations), maturing as to principal and interest at such times and in such amounts as will insure the
availability of cash, or a combination thereof, sufficient to pay at maturity or upon redemption all Securities of such series (other than any Securities of such series which shall have been destroyed, lost or stolen and which shall have been
replaced or paid as provided in Section 2.09) not theretofore delivered to the Trustee for cancellation, including principal and interest due or to become due on or prior to such date of maturity as the case may be, and if, in any such case,
the Issuer or the Guarantor shall also pay or cause to be paid all other sums payable hereunder by the Issuer or the Guarantor with respect to Securities of such series, then this Indenture shall cease to be of further effect with respect to
Securities of such series (except as to (i) rights of registration of transfer and exchange of securities of such series, and the Issuers right of optional redemption, if any, (ii) substitution of mutilated, defaced, destroyed, lost
or stolen Securities, (iii) rights of holders to receive payments of principal thereof and interest thereon upon the original stated due date therefor (but no upon acceleration), and remaining rights of the holders to receive mandatory sinking
fund payments, if any, (iv) the rights, obligations, indemnities and immunities of the Trustee hereunder and (v) the rights of the Securityholders of such series as beneficiaries hereof with respect to the property so deposited with the
Trustee payable to all or any of them), and the Trustee, on demand of the Issuer or the Guarantor accompanied by an Officers Certificate (or Guarantors Officers Certificate respectively) and an Opinion of Counsel and at the cost
and expense of the Issuer, shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture with respect to such series; provided, that the rights of Holders of the Securities to receive amounts in respect of
principal of and interest on the Securities held by them shall not be delayed longer than required by then-applicable mandatory rules or policies of any securities exchange upon which the Securities are listed. The Issuer agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred and to compensate the Trustee for any services thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the Securities of such
series.
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(b) The following provisions shall apply to the Securities of each series unless
specifically otherwise provided in a Board Resolution, Officers Certificate or indenture supplemental hereto provided pursuant to Section 2.03. In addition to discharge of the Indenture pursuant to the next preceding paragraph, in the
case of any series of Securities the exact amounts (including the currency of payment) of principal of and interest due on which can be determined at the time of making the deposit referred to in clause 9.01(b)(i) below, the Issuer and the Guarantor
shall be deemed to have paid and discharged the entire indebtedness on all the Securities of such a series on the 91st day after the date of the deposit referred to in clause 9.01(b)(i) below, and the provisions of this Indenture with respect to the
Securities of such series thereto shall no longer be in effect (except as to (1) rights of registration of transfer and exchange of Securities of such series and the Issuers right of optional redemption, if any, (2) substitution of
mutilated, defaced, destroyed, lost or stolen Securities, (3) rights of Holders of Securities to receive payments of principal thereof and interest thereon, upon the original stated due dates therefor (but not upon acceleration), and remaining
rights of the Holders to receive mandatory sinking fund payments, if any, (4) the rights, obligations, duties, indemnities and immunities of the Trustee hereunder, (5) the rights of the Holders of Securities of such series as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them and (6) the obligations of the Issuer under Section 3.02) and the Trustee, at the expense of the Issuer or the Guarantor, shall at the
Issuers or the Guarantors request, execute proper instruments acknowledging the same, if
(i) with
reference to this provision the Issuer or the Guarantor has irrevocably deposited or caused to be irrevocably deposited with the Trustee as trust funds in trust specifically pledged as security for, and dedicated solely to, the benefit of the
Holders of the Securities of such series (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations, maturing as to principal and interest at such
times and in such amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered
to the Trustee, to pay (1) the principal and interest on all Securities of such series and Coupons appertaining thereto on each date that such principal or interest is due and payable and (2) any mandatory sinking fund payments on the
dates on which such payments are due and payable in accordance with the terms of the Indenture and the Securities of such series;
(ii) such deposit will not result in a breach or violation of, or constitute a default under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(iii) the Issuer or the Guarantor has delivered to the Trustee an Opinion of Counsel based on the fact that (x) the
Issuer has received from, or there has been published by, the Internal Revenue Service a ruling or (y) since the date hereof, there has been a change in the applicable federal income tax law, in either case to the effect that, and such opinion
shall confirm that, the Holders of the Securities of such series and Coupons appertaining thereto will not recognize income, gain or loss for federal income tax purposes as a result of such deposit, defeasance and discharge and will be subject to
federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
(iv) the Issuer or the Guarantor has delivered to the Trustee an Officers Certificate or Guarantors
Officers Certificate and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the defeasance contemplated by this provision have been complied with.
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(c) Each of the Issuer and the Guarantor shall be released from its obligations under
Section 8.01 with respect to the Securities of any Series, Outstanding, and under any guarantee in respect thereof, on and after the date the conditions set forth below are satisfied (hereinafter, covenant defeasance). For this
purpose, such covenant defeasance means that, with respect to the Outstanding Securities of any Series, and under a guarantee in respect thereof, the Issuer and the Guarantor may omit to comply with and shall have no liability in respect of any
term, condition or limitation set forth in such Sections, whether directly or indirectly by reason of any reference elsewhere herein to such Sections or by reason of any reference in such Sections to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default under Section 4.01, but the remainder of this Indenture and such Securities and Coupons and the Guarantee shall be unaffected thereby. The following shall be the
conditions to application of this subsection (c) of this Section 9.01:
(i) The Issuer or the
Guarantor has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of the
Securities of such series, (A) cash in an amount, or (B) in the case of any series of Securities the payments on which may only be made in Dollars, U.S. Government Obligations maturing as to principal and interest at such times and in such
amounts as will insure the availability of cash or (C) a combination thereof, sufficient, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee, to
pay (1) the principal and interest on all Securities of such series and Coupons appertaining thereto and (2) any mandatory sinking fund payments on the day on which such payments are due and payable in accordance with the terms of the
Indenture and the Securities of such series.
(ii) No Event of Default or event which with notice or lapse of
time or both would become an Event of Default with respect to the Securities shall have occurred and be continuing on the date of such deposit, after giving effect thereto.
(iii) Such covenant defeasance shall not cause the Trustee to have a conflicting interest for purposes of the Trust
Indenture Act of 1939 with respect to any securities of the Issuer.
(iv) Such covenant defeasance shall not
result in a breach or violation of, or constitute a default under, this Indenture or any other agreement or instrument to which the Issuer or the Guarantor is a party or by which either of them is bound.
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(v) Such covenant defeasance shall not cause any Securities then listed on
any registered national securities exchange under the Securities Exchange Act of 1934, as amended, to be delisted.
(vi) The Issuer or the Guarantor shall have delivered to the Trustee an Officers Certificate or Guarantors Officers Certificate, as the case may be, and Opinion of Counsel to the effect
that the Holders of the Securities of such series 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.
(vii) The Issuer
or the Guarantor shall have delivered to the Trustee an Officers Certificate or Guarantors Officers Certificate, as the case may be, and an Opinion of Counsel, each stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
Section 9.02. Application by Trustee of
Funds Deposited for Payment of Securities. Subject to Section 9.04 and any subordination provisions applicable to the Securities; all moneys deposited with the Trustee pursuant to Section 9.01 shall be held in trust and applied by it
to the payment, either directly or through any paying agent (including the Issuer acting as its own paying agent), to the Holders of the particular Securities of such series for the payment or redemption of which such moneys have been deposited with
the Trustee, of all sums due and to become due thereon for principal and interest; but such money need not be segregated from other funds except to the extent required by law.
Section 9.03. Repayment of Moneys Held by Paying Agent. In connection with the satisfaction and discharge of this Indenture with respect to Securities of any series, all moneys then held by
any paying agent under the provisions of this Indenture with respect to such series of Securities shall, upon written demand of the Issuer, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
Section 9.04. Return of Moneys Held by Trustee and Paying Agent Unclaimed for
Two Years. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the principal of or interest on any Security of any series and not applied but remaining unclaimed for two years after the date upon which such
principal or interest shall have become due and payable, shall, upon the written request of the Issuer and unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property law, be repaid to the Issuer by the
Trustee for such series or such paying agent, and the Holder of the Security of such series shall, unless otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws, thereafter look only to the Issuer
for any payment which such Holder may be entitled to collect, and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 9.01 or the principal
and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
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ARTICLE 10
MISCELLANEOUS PROVISIONS
Section 10.01. Incorporators, Stockholders,
Members, Officers and Directors of Issuer Exempt from Individual Liability. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall
be had against any incorporator, as such or against any past, present or future stockholder (except in a stockholders corporate capacity as Guarantor), member, officer or director, as such, of the Issuer or the Guarantor or of any successor,
either directly or through the Issuer or the Guarantor, as the case may be, or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the acceptance of the Securities by the holders thereof and as part of the consideration for the issue of the Securities.
Section 10.02. Provisions of Indenture for the Sole Benefit of Parties and Securityholders. Nothing in this Indenture or in
the Securities, expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and their successors, the holders of Senior Debt and the Holders of the Securities, any legal or equitable
right, remedy or claim under this Indenture or under any covenant or provision herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors, the holders of Senior Debt and of the Holders
of the Securities.
Section 10.03. Successors and Assigns of Issuer and Guarantor Bound by Indenture. All the
covenants, stipulations, promises and agreements in this Indenture contained by or in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not. All the covenants, stipulations, promises and agreements in this Indenture
contained by or in behalf of the Guarantor shall bind its successors and assigns, whether so expressed or not.
Section 10.04. Notices and Demands on Issuer, Trustee and Securityholders. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the Holders of Securities to or on the Issuer or the Guarantor may be given or served by being deposited postage prepaid, first-class mail (except as otherwise
specifically provided herein) addressed (until another address is filed with the Trustee) as follows:
If to the Issuer:
[
]
c/o Teva
Pharmaceuticals USA, Inc.
1090 Horsham Road
North Wales, PA 19454
Attention: Deborah A. Griffin
Fax: (215) 591-8807
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with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
If to the Guarantor:
Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131
Israel
Attention: Eyal Desheh
Fax: 972-3-914-8700
with a copy to:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, NY 10019
Attention: Jeffrey S. Hochman
Fax: (212) 728-8111
Any notice, direction, request or demand by the Issuer, the Guarantor or any Securityholder to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if delivered
in person or mailed by first-class mail to the Trustee at 101 Barclay Street, Floor 4E, New York, NY 10286, Attention: Corporate Trust Administration Global Finance Unit.
The Trustee agrees to accept and act upon instructions or directions pursuant to this Indenture sent by unsecured e-mail, facsimile
transmission or other similar unsecured electronic methods. If the party elects to give the Trustee e-mail or facsimile instructions (or instructions by a similar electronic method) and the Trustee in its discretion elects to act upon such
instructions, the Trustees understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustees reliance upon and compliance
with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. Each other party agrees to assume all risks arising out of the use of such electronic methods to submit instructions and
directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk or interception and misuse by third parties.
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Where this Indenture provides for notice to Holders, such notice shall be sufficiently given
(unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each Holder entitled thereto, at his last address as it appears in the Security register. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not
be a condition precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the
suspension of or irregularities in regular mail service, it shall be impracticable to mail notice to the Issuer, the Guarantor or Securityholders when such notice is required to be given pursuant to any provision of this Indenture, then any manner
of giving such notice as shall be satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
Notwithstanding anything to the contrary contained herein, as long as the Securities are in the form of a Registered Global Security,
notice to the Holders may be made electronically in accordance with procedures of the Depositary.
Section 10.05.
Officers Certificates and Opinions of Counsel; Statements to be Contained Therein. Upon any application or demand by the Issuer or the Guarantor to the Trustee to take any action under any of the provisions of this Indenture, the Issuer
or the Guarantor, as the case may be, shall furnish to the Trustee an Officers Certificate or Guarantors Officers Certificate, as the case may be, stating that all conditions precedent provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant provided for in this Indenture 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.
Any certificate, statement or opinion of an officer of the Issuer or the Guarantor may be based, insofar as it relates to legal matters, upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate, statement or opinion may
46
be based as aforesaid are erroneous, or in the exercise of reasonable care should know that the same are erroneous. Any certificate, statement or opinion of counsel may be based, insofar as it
relates to factual matters, information with respect to which is in the possession of the Issuer or the Guarantor, as the case may be, upon the certificate, statement or opinion of or representations by an officer of officers of the Issuer or the
Guarantor, as the case may be, unless such counsel knows that the certificate, statement or opinion or representations with respect to the matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the
exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of
the Issuer or the Guarantor or of counsel may be based, insofar as it relates to accounting matters, upon a certificate or opinion of or representations by an accountant or firm of accountants in the employ of the Issuer, unless such officer or
counsel, as the case may be, knows that the certificate or opinion or representations with respect to the accounting matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous, or in the exercise of reasonable
care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed
with the Trustee shall contain a statement that such firm is independent.
Section 10.06. Payments Due on Saturdays,
Sundays and Holidays. If the date of maturity of interest on or principal of the Securities of any series or the date fixed for redemption or repayment of any such Security shall not be a Business Day, then payment of interest or principal need
not be made on such date, but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity or the date fixed for redemption, and no interest shall accrue for the period after such date.
Section 10.07. Conflict of any Provision of Indenture with Trust Indenture Act of 1939. If and to the extent that
any provision of this Indenture limits, qualifies or conflicts with another provision included in this Indenture by operation of Sections 310 to 317, inclusive, of the Trust Indenture Act of 1939 (an incorporated provision),
such incorporated provision shall control.
Section 10.08. New York Law to Govern. This Indenture and each
Security shall be deemed to be a contract under the laws of the State of New York, and for all purposes shall be construed in accordance with the laws of such State.
Section 10.09. Counterparts. This Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the
same instrument.
Section 10.10. Effect of Headings. The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
Section 10.11. Securities in a
Non-U.S. Currency. Unless otherwise specified in an Officers Certificate delivered pursuant to Section 2.03 of this Indenture with respect to a particular series of Securities, whenever for purposes of this Indenture any action may be
taken
47
by the Holders of a specified percentage in aggregate principal amount of Securities of all series or all series affected by a particular action at the time Outstanding and, at such time, there
are Outstanding Securities of any series which are denominated in a coin or currency other than Dollars, then the principal amount of Securities of such series which shall be deemed to be Outstanding for the purpose of taking such action shall be
that amount of Dollars that could be obtained for such amount at the Market Exchange Rate. For purposes of this Section 10.11, Market Exchange Rate shall mean the noon Dollar buying rate in New York City for cable transfers of that currency as
published by the Federal Reserve Bank of New York. If such Market Exchange Rate is not available for any reason with respect to such currency, the Issuer shall use, in good faith and its reasonable discretion and without liability on its part, such
quotation of the Federal Reserve Bank of New York as of the most recent available date, or quotations from one or more major banks in The City of New York or in the country of issue of the currency in question, or such other quotations as the Issuer
shall in its commercially reasonable judgment deem appropriate. The provisions of this paragraph shall apply in determining the equivalent principal amount in respect of Securities of a series denominated in a currency other than Dollars in
connection with any action taken by Holders of Securities pursuant to the terms of this Indenture.
All decisions and
determinations of the Issuer regarding the Market Exchange Rate or any alternative determination provided for in the preceding paragraph shall be in its commercially reasonable judgment and shall, in the absence of manifest error, be conclusive to
the extent permitted by law for all purposes and irrevocably binding upon the Issuer and all Holders.
Section 10.12.
Submission to Jurisdiction. Each of the Issuer and the Guarantor agrees that any legal suit, action or proceeding arising out of or based upon this Indenture may be instituted in any federal or state court sitting in New York City, and, to
the fullest extent permitted by law, waives any objection which it may now or hereafter have to the laying of venue of any such proceeding, and irrevocably submits to the jurisdiction of such court in any suit, action or proceeding. Each of the
Issuer and the Guarantor, as long as any of the Securities remain Outstanding or the parties hereto have any obligation under this Indenture, shall have an authorized agent (the Authorized Agent) in the United States upon whom
process may be served in any such legal action or proceeding. Service of process upon such agent and written notice of such service mailed or delivered to it shall to the extent permitted by law be deemed in every respect effective service of
process upon it in any such legal action or proceeding. The Issuer and the Guarantor each hereby appoints Teva Pharmaceuticals USA, Inc., 1090 Horsham Road, North Wales, PA 19454, as its agent for such purposes, and covenants and agrees that service
of process in any legal action or proceeding may be made upon it at such office of such agent.
Section 10.13.
Judgment Currency. Each of the Issuer and the Guarantor agrees, to the fullest extent that it may effectively do so under applicable law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the sum
due in respect of the principal of or interest on the Securities of any series (the Required Currency) into a currency in which a judgment will be rendered (the Judgment Currency), the rate of exchange used
shall be the rate at which in accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the day on which
48
final unappealable judgment is entered, unless such day is not a New York Banking Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate at which in
accordance with normal banking procedures the Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day on which final unappealable judgment is entered and
(b) its obligations under this Indenture to make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery shall result in the actual receipt, by the payee, of the full amount of the Required Currency expressed to be payable in respect of such payments,
(ii) shall be enforceable as an alternative or additional cause of action for the purpose of recovering in the Required Currency the amount, if any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other sum due under this Indenture. For purposes of the foregoing, New York Banking Day means any day except a Saturday, Sunday or a
legal holiday in The City of New York or a day on which banking institutions in The City of New York are authorized or required by law or executive order to close.
Section 10.14. Waiver of Jury Trial. EACH OF THE ISSUER, THE GUARANTOR AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 10.15. Foreign Account Tax Compliance Act. In order to comply with applicable tax laws, rules and regulations (including directives, guidelines and interpretations promulgated by
competent authorities) in effect from time to time (Applicable Law), the Issuer agrees to provide to the Trustee tax-information about holders or the transactions contemplated hereby (including any modification to the terms of
such transactions), to the extent such information is directly available to the Issuer, so that the Trustee can determine whether it has tax-related obligations under Applicable Law and the Issuer acknowledges that the Trustee shall be entitled to
make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Law.
ARTICLE 11
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 11.01. Applicability of Article. The provisions of this Article shall be applicable to the Securities of any series which are redeemable before their maturity or to any sinking fund
for the retirement of Securities of a series except as otherwise specified as contemplated by Section 2.03 for Securities of such series.
Section 11.02. Notice of Redemption; Partial Redemptions. Notice of redemption to the Holders of Securities of any series to be redeemed as a whole or in part at the option of the Issuer shall
be given by mailing notice of such redemption by first class mail, postage prepaid, at
49
least 30 days and not more than 60 days prior to the date fixed for redemption to such Holders of Securities of such series at their last addresses as they shall appear upon the registry books.
Any notice which is mailed in the manner herein provided shall be conclusively presumed to have been duly given, whether or not the Holder receives the notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect the validity of the proceedings for the redemption of any other Security of such series. Any such notice of redemption shall also be given to the Trustee in the manner
provided in Section 10.04 hereof at least 30 days and not more than 60 days prior to the date fixed for redemption.
The
notice of redemption to each such Holder shall specify the principal amount of each Security of such series held by such Holder to be redeemed, the CUSIP number (if any), the date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such Securities, that such redemption is pursuant to the mandatory or optional sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date interest thereon or on the portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state that on and after the date fixed for redemption, upon surrender of such Security, a new Security or Securities of such series in principal amount equal to the
unredeemed portion thereof will be issued.
The notice of redemption of Securities of any series to be redeemed at the option
of the Issuer shall be given by the Issuer or, at the Issuers request delivered to the Trustee at least five days before the date such notice is to be given (unless a shorter period shall be acceptable to the Trustee), by the Trustee in the
name and at the expense of the Issuer.
On or before the redemption date specified in the notice of redemption given as
provided in this Section, the Issuer will deposit with the Trustee or with one or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate and hold in trust as provided in Section 3.04) an amount of money or
other property sufficient to redeem on the redemption date all the Securities of such series so called for redemption at the appropriate redemption price, together with accrued interest to the date fixed for redemption. If less than all the
outstanding Securities of a series are to be redeemed, the Issuer will deliver to the Trustee at least 70 days prior to the date fixed for redemption an Officers Certificate stating the aggregate principal amount of Securities to be
redeemed.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in such manner as it
shall deem appropriate and fair, Securities of such series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for redemption and, in the case of any Securities of such series selected for partial redemption, the principal amount thereof to be redeemed. For all
purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities of any series shall relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
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Section 11.03. Payment of Securities Called for Redemption. If notice of
redemption has been given as above provided, the Securities or portions of Securities specified in such notice shall become due and payable on the date and at the place stated in such notice at the applicable redemption price, together with interest
accrued to the date fixed for redemption, and on and after said date (unless the Issuer shall default in the payment of such Securities at the redemption price, together with interest accrued to said date) interest on the Securities or portions of
Securities so called for redemption shall cease to accrue and, except as provided in Sections 5.05 and 9.04, such Securities shall cease from and after the date fixed for redemption to be entitled to any benefit or security under this
Indenture, and the Holders thereof shall have no right in respect of such Securities except the right to receive the redemption price thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of such Securities at a
place of payment specified in said notice, said Securities or the specified portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price, together with interest accrued thereon to the date fixed for redemption;
provided that any semiannual payment of interest becoming due on the date fixed for redemption shall be payable to the Holders of such Securities registered as such on the relevant record date subject to the terms and provisions of Sections 2.03 and
2.04 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal
shall, until paid or duly provided for, bear interest from the date fixed for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue Discount Security) borne by such Security.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security or Securities of such series, of authorized denominations, in principal amount equal to the unredeemed portion of the Security so presented.
Section 11.04. Exclusion of Certain Securities from Eligibility for Selection for Redemption. Securities shall be excluded
from eligibility for selection for redemption if they are identified by registration and certificate number in a written statement signed by an authorized officer of the Issuer and delivered to the Trustee at least 40 days prior to the last date on
which notice of redemption may be given as being owned of record and beneficially by, and not pledged or hypothecated by either (a) the Issuer or (b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.
Section 11.05. Mandatory and
Optional Sinking Funds. 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 payment in excess of such minimum
amount provided for by the terms of Securities of any series is herein referred to as an optional sinking fund payment. The date on which a sinking fund payment is to be made is herein referred to as the sinking fund payment
date.
In lieu of making all or any part of any mandatory sinking fund payment with respect to any series of Securities
in cash, the Issuer may at its option (a) deliver to the Trustee Securities of such series theretofore purchased or otherwise acquired (except upon redemption
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pursuant to the mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not previously so credited) theretofore purchased or otherwise acquired (except as
aforesaid) by the Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit for optional sinking fund payments (not previously so credited) made pursuant to this Section, or (c) receive credit
for Securities of such series (not previously so credited) redeemed by the Issuer through any optional redemption provision contained in the terms of such series. Securities so delivered or credited shall be received or credited by the Trustee at
the sinking fund redemption price specified in such Securities.
On or before the 60th day next preceding each sinking fund
payment date for any series, the Issuer will deliver to the Trustee a written statement (which need not contain the statements required by Section 10.05) signed by an authorized officer of the Issuer (a) specifying the portion of the
mandatory sinking fund payment to be satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series, (b) stating that none of the Securities of such series has theretofore been so credited, (c) stating
that no defaults in the payment of interest or Events of Default with respect to such series have occurred (which have not been waived or cured) and are continuing and (d) stating whether or not the Issuer intends to exercise its right to make
an optional sinking fund payment with respect to such series and, if so, specifying the amount of such optional sinking fund payment which the Issuer intends to pay on or before the next succeeding sinking fund payment date. Any Securities of such
series to be credited and required to be delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid which have not theretofore been delivered to the Trustee shall be delivered for cancellation pursuant to
Section 2.10 to the Trustee with such written statement (or reasonably promptly thereafter if acceptable to the Trustee). Such written statement shall be irrevocable and upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if any, on or before the next succeeding sinking fund payment date. Failure of the Issuer, on or before any such 60th day, to deliver such written statement and Securities
specified in this paragraph, if any, shall not constitute a default but shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the mandatory sinking fund payment for such series due on the next succeeding
sinking fund payment date shall be paid entirely in cash without the option to deliver or credit Securities of such series in respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to such series as
provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on the
next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund payments made in cash shall exceed $50,000 (or a lesser sum if the Issuer shall so request in writing to the Trustee specifying such lesser amount) with
respect to the Securities of any particular series, such cash shall be applied on the next succeeding sinking fund payment date to the redemption of Securities of such series at the sinking fund redemption price together with accrued interest to the
date fixed for redemption. If such amount shall be $50,000 or less and the Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 is available. The Trustee shall select, in the manner provided in
Section 11.02, for redemption on such sinking fund payment date a sufficient principal amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if requested in writing by the Issuer) inform the Issuer of the
serial numbers of the Securities of such series (or portions thereof) so selected. Securities of any series which are (a) owned by the Issuer or an entity known by a
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Responsible Officer of the Trustee to be directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer, as shown by the Security register, and not
known to a Responsible Officer of the Trustee to have been pledged or hypothecated by the Issuer or any such entity or (b) identified in an Officers Certificate at least 60 days prior to the sinking fund payment date as being beneficially
owned by, and not pledged or hypothecated by, the Issuer or an entity directly or indirectly controlling or controlled by or under direct or indirect common control with the Issuer shall be excluded from Securities of such series eligible for
selection for redemption. The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request the Trustee in writing) shall cause notice of redemption of the Securities of such series to be given in substantially the
manner provided in Section 11.02 (and with the effect provided in Section 11.03) for the redemption of Securities of such series in part at the option of the Issuer. The amount of any sinking fund payments not so applied or allocated to
the redemption of Securities of such series shall be applied to the next cash sinking fund payment for such series and, together with such payment, shall be applied in accordance with the provisions of this Section. Any and all sinking fund moneys
held on the stated maturity date of the Securities of any particular series (or earlier, if such maturity is accelerated), which are not held for the payment or redemption of particular Securities of such series shall be applied, together with other
moneys, if necessary, sufficient for the purpose, to the payment of the principal of, and interest on, the Securities of such series at maturity.
On or before the Business Day prior to each sinking fund payment date, the Issuer shall pay to the Trustee in cash or shall otherwise provide for the payment of all interest accrued to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or
cause to be redeemed any Securities of a series with sinking fund moneys or give any notice of redemption of Securities for such series by operation of the sinking fund during the continuance of a default in payment of interest on such Securities or
of any Event of Default except that, where the mailing of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities, provided that it shall have received from the Issuer
a sum sufficient for such redemption. Except as aforesaid, any moneys in the sinking fund for such series at the time when any such default or Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during the
continuance of such default or Event of Default, be deemed to have been collected under Article 4 and held for the payment of all such Securities. In case such Event of Default shall have been waived as provided in Section 4.10 or the default
cured on or before the 60th day preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the next succeeding sinking fund payment date in accordance with this Section to the redemption of such Securities.
ARTICLE 12
GUARANTEE
Section 12.01. The Guarantee. The Guarantor hereby
unconditionally guarantees to each Holder of a Security authenticated and delivered by the Trustee the due and punctual payment of the principal of, any premium and interest on, and any additional amounts with
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respect to such Security and the due and punctual payment of the sinking fund payments (if any) provided for pursuant to the terms of such Security, when and as the same shall become due and
payable, whether at maturity, by acceleration, redemption, repayment or otherwise, in accordance with the terms of such Security and of this Indenture and all other amounts due and payable under this Indenture. In case of the failure of the Issuer
punctually to pay any such principal, premium, interest, additional amounts, sinking fund payment or other amounts, the Guarantor hereby agrees to cause any such payment to be made punctually when and as the same shall become due and payable,
whether at maturity, upon acceleration, redemption, repayment or otherwise, and as if such payment were made by the Issuer.
Section 12.02. Net Payments. Except as otherwise provided in any indenture supplemental hereto, all payments of principal of
and premium, if any, interest and any other amounts on, or in respect of, the Securities of any series shall be made by the Guarantor without withholding or deduction at source for, or on account of, any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature imposed or levied by or on behalf of the State of Israel (the taxing jurisdiction) or any political subdivision or taxing authority thereof or therein, unless such taxes,
fees, duties, assessments or governmental charges are required to be withheld or deducted by (i) the laws (or any regulations or ruling promulgated thereunder) of a taxing jurisdiction or any political subdivision or taxing authority thereof or
therein or (ii) an official position regarding the application, administration, interpretation or enforcement of any such laws, regulations or rulings (including, without limitation, a holding by a court of competent jurisdiction or by a taxing
authority in a taxing jurisdiction or any political subdivision thereof). If a withholding or deduction at source is required, the Guarantor shall, subject to certain limitations and exceptions set forth below, pay to the Holder of any such Security
such additional amounts as may be necessary so that every net payment of principal, premium, if any, interest or any other amount made to such Holder, after such withholding or deduction, shall not be less than the amount provided for in such
Security, and this Indenture to be then due and payable; provided, however, that the Guarantor shall not be required to make payment of such additional amounts for or on account of:
(a) any tax, fee, duty, assessment or governmental charge of whatever nature which would not have been imposed but for the fact that such
Holder: (A) was a resident, domiciliary or national of, or engaged in business or maintained a permanent establishment or was physically present in, the relevant taxing jurisdiction or any political subdivision thereof or otherwise had some
connection with the relevant taxing jurisdiction other than by reason of the mere ownership of, or receipt of payment under, such Security; (B) presented such Security for payment in the relevant taxing jurisdiction or any political subdivision
thereof, unless such Security could not have been presented for payment elsewhere; or (C) presented such Security more than 30 days after the date on which the payment in respect of such Security first became due and payable or provided for,
whichever is later, except to the extent that the Holder would have been entitled to such additional amounts if it had presented such Security for payment on any day within such period of 30 days;
(b) any estate, inheritance, gift, sale, transfer, personal property or similar tax, assessment or other governmental charge;
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(c) any tax, assessment or other governmental charge that is imposed or withheld by reason
of the failure by the Holder or the beneficial owner of such Security to comply with any reasonable request by the Guarantor addressed to the Holder within 90 days of such request (A) to provide information concerning the nationality, residence
or identity of the Holder or such beneficial owner or (B) to make any declaration or other similar claim or satisfy any information or reporting requirement, which, in the case of (A) or (B), is required or imposed by statute, treaty,
regulation or administrative practice of the relevant taxing jurisdiction or any political subdivision thereof as a precondition to exemption from all or part of such tax, assessment or other governmental charge; or
(d) any combination of items (a), (b) and (c);
nor shall additional amounts be paid with respect to any payment of the principal of, or premium, if any, interest or any other amounts on, any such Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security to the extent such payment would be required by the laws of the relevant taxing jurisdiction (or any political subdivision or relevant taxing authority thereof or therein) to be
included in the income for tax purposes of a beneficiary or partner or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner who would not have been entitled to such additional amounts had it been the Holder of
the Security.
Section 12.03. Guarantee Unconditional, etc. The Guarantor hereby agrees that its obligations
hereunder shall be as principal and not merely as surety, and shall be absolute, irrevocable and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any Security or this Indenture, any
failure to enforce the provisions of any Security or this Indenture, or any waiver, modification, consent or indulgence granted with respect thereto by the Holder of such Security or the Trustee, the recovery of any judgment against the Issuer or
any action to enforce the same, or any other circumstances which may otherwise constitute a legal or equitable discharge of a surety or guarantor. The Guarantor hereby waives diligence, presentment, demand of payment, filing of claims with a court
in the event of merger, insolvency or bankruptcy of the Issuer, any right to require a proceeding first against the Issuer, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by payment in full of the principal of, any premium and interest on, and any additional amounts and sinking fund payments required with respect to, the Securities and the complete
performance of all other obligations contained in the Securities and this Indenture, as supplemented and amended from time to time. The Guarantor further agrees, to the fullest extent that it lawfully may do so, that, as between the Guarantor, on
the one hand, and the Holders and the Trustee, on the other hand, the maturity of the obligations guaranteed hereby may be accelerated as provided in Section 4.01 hereof for the purposes of this Guarantee, notwithstanding any stay, injunction
or prohibition extant under any bankruptcy, insolvency, reorganization or other similar law of any jurisdiction preventing such acceleration in respect of the obligations guaranteed hereby.
Section 12.04. Reinstatement. This Guarantee shall continue to be effective or be reinstated, as the case may be, if at any
time payment on any Security, in whole or in part, is rescinded or must otherwise be restored to the Issuer or the Guarantor upon the bankruptcy, liquidation or reorganization of the Issuer or otherwise.
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Section 12.05. Subrogation. The Guarantor shall be subrogated to all rights of
the Holder of any Security against the Issuer in respect of any amounts paid to such Holder by the Guarantor pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the principal of, any premium and interest on, and any additional amounts and sinking fund payments required with respect to, all Securities shall have been paid in full.
Section 12.06. Assumption by Guarantor.
(a) The Guarantor may, without the consent of the Holders, assume all of the rights and obligations of the Issuer hereunder with respect to a series of Securities and under the Securities of such series
if, after giving effect to such assumption, no Event of Default or event which with the giving of notice or lapse of time, or both, would become an Event of Default, shall have occurred and be continuing. Upon such an assumption, the Guarantor shall
execute a supplemental indenture evidencing its assumption of all such rights and obligations of the Issuer and the Issuer shall be released from its liabilities hereunder and under such Securities as obligor on the Securities of such Series.
(b) The Guarantor shall assume all of the rights and obligations of the Issuer hereunder with respect to a series of
Securities and under the Securities of such series if, upon a default by the Issuer in the due and punctual payment of the principal, sinking fund payment, if any, premium, if any, or interest on such Securities, the Guarantor is prevented by any
court order or judicial proceeding from fulfilling its obligations under Section 12.01 with respect to such series of Securities. Such assumption shall result in the Securities of such series becoming the direct obligations of the Guarantor and
shall be effected without the consent of the Holders of the Securities of any Series. Upon such an assumption, the Guarantor shall execute a supplemental indenture evidencing its assumption of all such rights and obligations of the Issuer, and the
Issuer shall be released from its liabilities hereunder and under such Securities as obligor on the Securities of such Series.
ARTICLE 13
SUBORDINATION OF SECURITIES
Section 13.01. Agreement to Subordinate. Each of the Issuer and the Guarantor covenants and agrees, and each Holder of a Security issued hereunder by his acceptance thereof likewise covenants
and agrees, that all Securities shall be issued subject to the provisions of this Article; and each person holding any Security, whether upon original issue or upon transfer, assignment or exchange thereof accepts and agrees that the principal of
(and premium, if any) and interest on all Securities issued hereunder shall, to the extent and in the manner set forth herein, subject to any modifications or additional terms set forth in any applicable supplemental indenture, be subordinated and
subject in right to the prior payment in full of all Senior Debt.
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Section 13.02. Payments to Holders of Securities. In the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar case or proceeding in connection therewith, relative to the Issuer or the Guarantor or to its creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Issuer or the Guarantor, whether voluntary or involuntary and whether or not involving insolvency or bankruptcy, and (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Issuer or the Guarantor, then and in any such event the holders of Senior Debt shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior Debt
(including any interest accruing thereon after the commencement of any such case or proceeding), or provision shall be made for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, before the
Holders of the Securities are entitled to receive any payment on account of principal of (or premium, if any) or interest on the Securities, and to that end the holders of Senior Debt shall be entitled to receive, for application to the payment
thereof, any payment or distribution of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment of any other indebtedness of the Issuer
or the Guarantor being subordinated to the payment of the Securities, which may be payable or deliverable in respect of the Securities in any such case, proceeding, dissolution or other winding up event.
In the event that, notwithstanding the foregoing provisions of this Section, the Trustee or the Holder of any Security shall have
received any payment or distribution of assets of the Issuer or the Guarantor of any kind or character, whether in cash, property or securities, including any such payment or distribution which may be payable or deliverable by reason of the payment
of any other indebtedness of the Issuer or the Guarantor being subordinated to the payment of the Securities, before all Senior Debt is paid in full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment or distribution shall be paid over or delivered forthwith to the trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of assets of the Issuer or the Guarantor for application to the payment of all Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in full, after
giving effect to any concurrent payment or distribution to or for the holders of Senior Debt.
For purposes of this Article
only, the words cash, property or securities shall not be deemed to include shares of stock of the Issuer or the Guarantor as reorganized or readjusted, or securities of the Issuer or the Guarantor or any other corporation or other
entity provided for by a plan of reorganization or readjustment which are subordinated in right of payment to all Senior Debt which may at the time be outstanding to substantially the same extent as, or to a greater extent than, the Securities are
pursuant to the provisions in this Article. The consolidation of the Issuer or the Guarantor with, or the merger of the Issuer or the Guarantor into, another legal entity or the liquidation or dissolution of the Issuer or the Guarantor following the
conveyance or transfer of its property as an entirety, or substantially as an entirety, to another legal entity upon the terms and conditions provided in Article 8 shall not be deemed a dissolution, winding-up, liquidation or reorganization for the
purposes of this section if such other corporation shall, as a part of such consolidation, merger, conveyance or transfer, comply with the conditions stated in Article 8.
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Section 13.03. No Payment When Senior Debt Is in Default. Subject to the last
paragraph of this Section, (a) in the event and during the continuation of any default in the payment of principal of (or premium, if any) or interest on any Senior Debt beyond any applicable grace period with respect thereto (but not if such
default in payment shall have been cured or waived or shall have ceased to exist), or (b) in the event that the holders of such Senior Debt (or a trustee on behalf of the holders thereof) to have declared such Senior Debt due and payable prior
to the date on which it would otherwise have become due and payable by reason of an event of default (but not if such declaration of acceleration shall have been rescinded or annulled), then no payment (including any payment which may be payable by
reason of the payment of any other indebtedness of the Issuer or the Guarantor being subordinated to the payment of the Securities) shall be made by the Issuer or the Guarantor on account of principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities, other than pursuant to their conversion, if any; provided, however, that nothing in this Section shall prevent the satisfaction of any sinking fund payment in accordance
with Article 11 by delivering and crediting pursuant to Section 11.05 Securities which have been acquired (upon redemption or otherwise) prior to such default in payment.
In the event that, notwithstanding the foregoing, the Issuer or the Guarantor shall make any payment to the Trustee or the Holder of any
Security prohibited by the provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee or, as the case may be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Issuer or the Guarantor, as the case may be.
Section 13.04. Payment Permitted in
Certain Situations. Nothing contained in this Article or elsewhere in this Indenture or in any of the Securities shall prevent (a) the Issuer or the Guarantor, at any time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or other marshalling of assets and liabilities of the Issuer or the Guarantor, as the case may be, referred to in Section 13.02 or under the conditions described in
Section 13.03, from making payments at any time of or on account of the principal of (and premium, if any) or interest on the Securities or on account of the purchase or other acquisition of the Securities, or (b) the application by the
Trustee of any money deposited with it hereunder to the payment of or on account of the principal of (and premium, if any) or interest on the Securities or the retention of such payment by the Holders, if, at the time of such application by the
Trustee, it did not have knowledge that such payment would have been prohibited by the provisions of this Article.
Section 13.05. Subrogation to Rights of Holders of Senior Debt. Subject to the payment in full of all Senior Debt or the
provision for such payment in cash or cash equivalents or otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of the Securities shall be subrogated to the extent of the payments or distributions made to the holders of such
Senior Debt pursuant to the provisions of this Article (equally and ratably with the holders of indebtedness of the Issuer or the Guarantor which by its express terms is subordinated to the indebtedness of the Issuer or the Guarantor, as the case
may be, to substantially the same extent as the Securities are subordinated to the Senior Debt and is entitled to like rights of subrogation) to the rights of the holders of such Senior Debt to receive payments and distributions of cash, property
and securities applicable to the Senior Debt until the principal of (and premium, if any) and interest on the Securities shall be paid in full. For purposes of such subrogation, no
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payments or distributions to the holders of the Senior Debt of any cash, property or securities to which the Holders of the Securities or the Trustee would be entitled except for the provisions
of this Article, and no payments over pursuant to the provisions of this Article to the holders of Senior Debt by Holders of the Securities or the Trustee, shall, as among the Issuer or the Guarantor, as the case may be, its creditors other than
holders of Senior Debt and the Holders of the Securities, be deemed to be a payment or distribution by the Issuer or the Guarantor to or on account of the Securities.
Section 13.06. Provisions Solely to Define Relative Rights. The provisions of this Article are and are intended solely for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Debt on the other hand. Nothing contained in this Article or elsewhere in this Indenture or in the Securities is intended to or shall (a) impair, as among the Issuer or the Guarantor, as the
case may be, its creditors other than holders of Senior Debt and the Holders of the Securities, the obligation of the Issuer or the Guarantor, which is absolute and unconditional, to pay to the Holders of the Securities the principal of (and
premium, if any) and interest on the Securities as and when the same shall become due and payable in accordance with their terms; or (b) affect the relative rights against the Issuer or the Guarantor of the Holders of the Securities and
creditors of the Issuer or the Guarantor, as the case may be, other than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under
this Indenture, subject to the rights, if any, under this Article of the holders of Senior Debt to receive cash, property and securities otherwise payable or deliverable to the Trustee or such Holder.
Section 13.07. Trustee to Effectuate Subordination. Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or appropriate to effectuate the subordination provided in this Article and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 13.08. No Waiver of Subordination Provisions. No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of the Issuer or the Guarantor or by any act or failure to act, in good faith, by any such holder, or by any
non-compliance by the Issuer or the Guarantor with the terms, provisions and covenants of this Indenture, regardless of any knowledge thereof any such holder may have or be otherwise charged with.
Section 13.09. Notice to Trustee. The Issuer or the Guarantor shall give prompt written notice to the Trustee of any fact
known to the Issuer or the Guarantor, as the case may be, which would prohibit the making of any payment to or by the Trustee in respect of the Securities. Notwithstanding the provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the making of any payment to or by the Trustee in respect of the Securities, unless and until a Responsible Officer of the Trustee shall have received
written notice thereof from the Issuer or the Guarantor or a holder of Senior Debt or from any trustee therefor; and, prior to the receipt of any such written notice, the Trustee, subject to the provisions of Section 5.01, shall be entitled in
all respects to assume that no such facts exist.
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Subject to the provisions of Section 5.01, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a holder of Senior Debt (or a trustee therefor) to establish that such notice has been given by a holder of Senior Debt (or a trustee therefor). In the event that the Trustee
determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Debt to participate in any payment or distribution pursuant to this Article, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Debt held by such Person, the extent to which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the Trustee may defer any payment to such Person pending judicial determination as to the right of such Person to receive such payment.
Section 13.10. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of
the Issuer or the Guarantor referred to in this Article, the Trustee, subject to the provisions of Section 5.01, and the Holders of the Securities shall be entitled to rely upon any order or decree entered by any court of competent jurisdiction
in which such insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for
the benefit of creditors, agent or other Person making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the purpose of ascertaining the Persons entitled to participate in such payment or distribution, the
holders of Senior Debt and other indebtedness of the Issuer or the Guarantor, as the case may be, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all other facts pertinent thereto or to this Article.
Section 13.11. Trustee Not Fiduciary for Holders of Senior Debt. The Trustee shall not be deemed to owe any
fiduciary duty to the holders of Senior Debt and shall not be liable to any such holders or creditors if it shall in good faith pay over or distribute to Holders of Securities or to the Issuer or the Guarantor or to any other Person cash, property
or securities to which any holders of Senior Debt shall be entitled by virtue of this Article or otherwise. With respect to the holders of Senior Debt, the Trustee undertakes to perform or to observe only such of its covenants and obligations as are
specifically set forth in this Article and no implied covenants or obligations with respect to holders of Senior Debt shall be read into this Indenture against the Trustee.
Section 13.12. Rights of Trustee as Holder of Senior Debt; Preservation of Trustees Rights. The Trustee in its individual capacity shall be entitled to all the rights set forth in this
Article with respect to any Senior Debt which may at any time be held by it, to the same extent as any other holder of Senior Debt and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or pursuant to Section 5.06.
Section 13.13. Article Applicable to Paying Agents. In case at any time any paying agent other than the Trustee shall have
been appointed by the Issuer and be then acting hereunder, the term Trustee as used in this Article shall in such case (unless the context
60
otherwise requires) be construed as extending to and including such paying agent within its meaning as fully for all intents and purposes as if such paying agent were named in this Article in
addition to or in place of the Trustee.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed as of the day and year first above written.
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Very truly yours, |
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[
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Name: |
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Title: |
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By: |
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Name: |
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Title: |
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TEVA PHARMACEUTICAL INDUSTRIES LIMITED, AS GUARANTOR |
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By: |
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Name: |
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Title: |
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By: |
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THE BANK OF NEW YORK MELLON, AS TRUSTEE |
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Exhibit 5.1
* |
Member of the N.Y. Bar Association |
February 9, 2015
Teva Pharmaceutical Industries Limited
Teva Pharmaceutical
Finance IV, LLC
Teva Pharmaceutical Finance V, LLC
Teva
Pharmaceutical Finance VI, LLC
Teva Pharmaceutical Finance Company B.V.
Teva Pharmaceutical Finance IV B.V.
Teva Pharmaceutical Finance
V B.V.
Teva Pharmaceutical Finance N.V.
Teva Pharmaceutical
Finance Netherlands II B.V.
c/o Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 4951033 Israel
- 2 -
TULCHINSKY STERN MARCIANO COHEN
LEVITSKI & CO.
Re: Registration Statement on Form F-3
Ladies and Gentlemen:
We have acted as Israeli counsel for
Teva Pharmaceutical Industries Limited, an Israeli corporation (Teva), in connection with the preparation and filing with the United States Securities and Exchange Commission (the Commission) pursuant to the
Securities Act of 1933, as amended (the Act), of the Registration Statement on Form F-3 (the Registration Statement) by Teva, Teva Pharmaceutical Finance IV, LLC, a Delaware limited liability
company (Teva Finance IV LLC), Teva Pharmaceutical Finance V, LLC, a Delaware limited liability company (Teva Finance V LLC), Teva Pharmaceutical Finance VI, LLC, a Delaware limited
liability company (Teva Finance VI LLC and, together with Teva Finance IV LLC and Teva Finance V LLC, the LLCs), Teva Pharmaceutical Finance Company B.V., a Curaçao private limited liability
company (Teva Finance Company BV), Teva Pharmaceutical Finance IV B.V., a Curaçao private limited liability company (Teva Finance IV BV), Teva Pharmaceutical Finance V B.V., a
Curaçao private limited liability company (Teva Finance V BV), Teva Pharmaceutical Finance N.V., a Curaçao limited liability company (Teva Finance NV); and Teva
Pharmaceutical Finance Netherlands B.V., a Dutch private limited liability company (Teva Netherlands and, together with the Teva Finance Company BV, Teva Finance NV, Teva Finance IV BV, Teva Finance V BV, Teva
Finance VI and the LLCs, the Finance Subsidiaries). The Registration Statement is filed by Teva and the Finance Subsidiaries (together, the Companies) for the registration of the sale from time to
time of:
(A) by Teva, (i) American Depositary Shares (ADSs), each representing one ordinary share, par value NIS 0.10 per
share, of Teva (the Ordinary Shares); (ii) senior debt securities (the Teva Senior Debt Securities), which may be issued pursuant to an indenture (the Teva Senior
Indenture) to be executed by Teva and The Bank of New York Mellon, as trustee; and subordinated debt securities (the Teva Subordinated Debt Securities and, together with the Teva Senior Debt
Securities, the Teva Debt Securities), which may be issued pursuant to an indenture (the Teva Subordinated Indenture and, together with the Teva Senior Indenture, the
Teva Indentures) to be executed by Teva and The Bank of New York Mellon, as trustee; (iii) warrants (the Warrants) to purchase debt or equity securities of Teva, debt securities of the Finance
Subsidiaries or securities of other parties or other rights; (iv) purchase contracts (the Purchase Contracts) for the purchase and sale of Tevas securities or securities of third parties, a basket of such
securities, an index or indices of such securities or any combination of the above; and (v) units (the Units) consisting of one or more Purchase Contracts, Warrants, Teva Debt Securities, Ordinary Shares, ADSs, other equity
securities or any combination of such securities; and
(B) by each of the Finance Subsidiaries, (i) senior debt securities (the
Subsidiary Senior Debt Securities), guaranteed by Teva, which may be issued pursuant to an indenture (each, a Subsidiary Senior Indenture) to be executed by the applicable Finance
Subsidiary, Teva and The Bank of New York Mellon, as trustee; and (ii) subordinated debt securities (the Subsidiary Subordinated Debt Securities, and together with the Subsidiary Senior Debt Securities, the
Subsidiary Debt Securities), guaranteed by Teva, which may be issued pursuant to an indenture (each, a Subsidiary Subordinated Indenture and together with the Subsidiary Senior
Indentures, the Subsidiary Indentures) to be executed by the applicable Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee.
- 2 -
- 3 -
TULCHINSKY STERN MARCIANO COHEN
LEVITSKI & CO.
For purposes of the opinions hereinafter expressed, we have examined originals or copies, certified and
otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary as a basis for the opinions expressed herein. Insofar as the opinions expressed herein
involve factual matters, we have relied (without independent factual investigation), to the extent we deemed proper or necessary, upon certificates of, and other communications with, officers and employees of the Teva and upon certificates of public
officials. We have also considered such questions of Israeli law as we have deemed relevant and necessary as a basis for the opinions hereinafter expressed.
In making our examination, we have assumed the genuineness of all signatures, the legal capacity of natural persons, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, photostatic or facsimile copies and the authenticity of the originals of such copies.
In connection with the opinions as to enforceability expressed below, such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium
and other similar laws relating to or affecting creditors rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless of whether such
enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing.
In connection with all of the
opinions expressed below, we have assumed that, at or prior to the time of the delivery of any such security, (i) the Board of Directors of Teva shall have duly established and authorized the terms of such security and the related indentures
and duly authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded; (ii) the Registration Statement shall have been automatically declared effective and such effectiveness shall not have
been terminated or rescinded; and (iii) there shall not have occurred any change in law affecting the validity or enforceability of such security. We have also assumed that none of the terms of any security to be established subsequent to the
date hereof, nor the issuance and delivery of such security, nor the compliance by Teva with the terms of such security will violate any applicable law or will result in a violation of any provision of any instrument or agreement then binding upon
the relevant Company (including Teva), or any restriction imposed by any court or governmental body having jurisdiction over Teva.
Our opinions expressed
below are based upon our consideration of only those statutes, rules and regulations of the state of Israel which, in our experience, are normally applicable to guarantors or issuers of securities of the nature of the Ordinary Shares, ADSs, Teva
Debt Securities, Warrants, Purchase Contracts, Units and Subsidiary Debt Securities.
Based on and subject to the foregoing, we are of the opinion that:
|
1. |
The Deposit Agreement, dated as of November 5, 2012, among Teva, JPMorgan Chase Bank N.A., as depositary, and the Owners and Holders (each as defined therein) from time to time of ADSs issued thereunder (the
Deposit Agreement) has been duly authorized, executed and delivered by Teva. |
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2. |
When the Ordinary Shares, including the Ordinary Shares underlying the ADSs or any Warrants, Purchase Contracts or Units, are issued in accordance with the assumptions above, such Ordinary Shares will be validly issued,
fully paid and non-assessable. |
- 3 -
- 4 -
TULCHINSKY STERN MARCIANO COHEN
LEVITSKI & CO.
|
3. |
When the Teva Indentures have been duly authorized, executed and delivered by the parties thereto in accordance with applicable law, and when the specific terms of a particular series of Teva Debt Securities have been
duly authorized and established in accordance with the relevant Teva Indenture and such Teva Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the relevant Teva Indenture and any applicable
underwriting or other agreement, such Teva Debt Securities will constitute valid and binding obligations of Teva, enforceable against Teva in accordance with their terms. |
|
4. |
When the Subsidiary Indentures have been duly authorized, executed and delivered by the parties thereto (including Teva as guarantor) in accordance with applicable law, and when the specific terms of a particular series
of Subsidiary Debt Securities have been duly authorized and established in accordance with the relevant Subsidiary Indenture and such Subsidiary Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance
with the relevant Subsidiary Indenture and any applicable underwriting or other agreement, Tevas guarantee under each Subsidiary Indenture with respect to such Subsidiary Debt Securities will constitute a valid and binding obligation of Teva,
enforceable against Teva in accordance with its terms. |
|
5. |
Under the choice of law or conflicts of law doctrines of Israel, a court, tribunal or other competent authority sitting in Israel has discretion, but should apply to any claim or controversy arising under a Teva
Indenture, a Subsidiary Indenture or the Deposit Agreement the law of the State of New York, which is the local law governing the Teva Indentures Subsidiary Indentures and the Deposit Agreement, designated therein by the parties thereto, provided
there are no reasons for declaring such designation void on the grounds of public policy or as being contrary to Israeli law. |
We do not
purport to be expert on the laws of any jurisdiction other than the laws of the State of Israel, and we express no opinion herein as to the effect of any other laws.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By giving our consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Act or the rules and regulations issued or promulgated thereunder.
This opinion
is being delivered to you for your information in connection with the above matter and addresses matters only as of the date hereof.
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Very truly yours, |
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/s/ Tulchinsky Stern Marciano Cohen Levitski & Co. Law Offices |
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Tulchinsky Stern Marciano Cohen Levitski & Co. Law Offices |
- 4 -
Exhibit 5.2
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787 Seventh Avenue |
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New York, NY 10019-6099 |
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Tel: 212 728 8000 |
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Fax: 212 728 8111 |
February 9, 2015
Teva Pharmaceutical Industries Limited
Teva Pharmaceutical Finance IV, LLC
Teva Pharmaceutical Finance V, LLC
Teva
Pharmaceutical Finance VI, LLC
Teva Pharmaceutical Finance Company B.V.
Teva Pharmaceutical Finance IV B.V.
Teva Pharmaceutical Finance V B.V.
Teva Pharmaceutical Finance N.V.
Teva
Pharmaceutical Finance Netherlands II B.V.
c/o Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131 Israel
Re:
Registration Statement on Form F-3
Ladies and Gentlemen:
We have acted as U.S. counsel to Teva Pharmaceutical Industries Limited, an Israeli corporation (Teva), Teva Pharmaceutical Finance IV, LLC, a Delaware limited liability company
(Teva Finance IV LLC), Teva Pharmaceutical Finance V, LLC, a Delaware limited liability company (Teva Finance V LLC), Teva Pharmaceutical Finance VI, LLC, a Delaware limited liability company (Teva
Finance VI LLC and, together with Teva Finance IV LLC and Teva Finance V LLC, the LLCs), Teva Pharmaceutical Finance Company B.V., a Curaçao private limited liability company (Teva Finance Company
BV), Teva Pharmaceutical Finance IV B.V., a Curaçao private limited liability company (Teva Finance IV BV), Teva Pharmaceutical Finance V B.V., a Curaçao private limited liability company (Teva
Finance V BV), Teva Pharmaceutical Finance N.V., a Curaçao limited liability company (Teva Finance NV, and, together with Teva Finance Company BV, Teva Finance IV BV, and Teva Finance V BV, the
BVs), and Teva Pharmaceutical Finance Netherlands II B.V., a Dutch private limited liability company (together with the LLCs and the BVs, the Finance Subsidiaries), in connection with the preparation and filing
of a Registration Statement on Form F-3 (the Registration Statement) by Teva and the Finance Subsidiaries (together, the Companies) with the Securities and Exchange Commission pursuant to the Securities Act of
1933, as amended (the Act), for the registration of the sale from time to time of:
NEW
YORK WASHINGTON PARIS LONDON
MILAN ROME FRANKFURT
BRUSSELS
in alliance with Dickson Minto W.S., London and
Edinburgh
Teva Pharmaceutical Industries Limited
and its Finance Subsidiaries
February 9, 2015
Page
2
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(A) |
by Teva, (i) American Depositary Shares (ADSs), each representing one ordinary share, par value NIS 0.10 per share, of
Teva (Ordinary Shares); (ii) senior debt securities (the Teva Senior Debt Securities), which may be issued pursuant to an indenture (the Teva Senior Indenture) to be executed by Teva and
The Bank of New York Mellon, as trustee; and subordinated debt securities (the Teva Subordinated Debt Securities and, together with the Teva Senior Debt Securities, the Teva Debt Securities), which may be issued
pursuant to an indenture (the Teva Subordinated Indenture and, together with the Teva Senior Indenture, the Teva Indentures) to be executed by Teva and The Bank of New York Mellon, as trustee;
(iii) warrants (the Warrants) to purchase debt or equity securities of Teva, debt securities of the Finance Subsidiaries or securities of other parties or other rights; (iv) purchase contracts (the Purchase
Contracts) for the purchase or sale of Tevas securities or securities of third parties, a basket of such securities, an index or indices of such securities or any combination of the above; and (v) units (the
Units) consisting of one or more Purchase Contracts, Warrants, debt securities, Ordinary Shares, ADSs, other equity securities or any combination of such securities; and |
|
(B) |
by each of the Finance Subsidiaries, (i) senior debt securities (the Finance Subsidiary Senior Debt Securities), guaranteed
by Teva, which may be issued pursuant to an indenture (each, a Finance Subsidiary Senior Indenture) to be executed by the applicable Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee; and (ii) subordinated
debt securities (the Finance Subsidiary Subordinated Debt Securities, and together with the Finance Subsidiary Senior Debt Securities, the Finance Subsidiary Debt Securities), guaranteed by Teva, which may be
issued pursuant to an indenture (each, a Finance Subsidiary Subordinated Indenture, and together with the Finance Subsidiary Senior Indentures, the Finance Subsidiary Indentures) to be executed by the applicable
Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee. |
For purposes of the opinions
hereinafter expressed, we have examined copies of the Certificate of Formation and the Operating Agreement of each of the LLCs, the Amended and Restated Deposit Agreement, dated as of November 5, 2012, among Teva, JPMorgan Chase Bank N.A., as
depositary (the Depositary), and the holders from time to time of ADSs issued thereunder (the Deposit Agreement), the forms of the Teva Indentures and the Finance Subsidiary Indentures, the Registration
Statement and originals or copies, certified and otherwise identified to our satisfaction, of such other documents, corporate or limited liability company records, certificates of public officials and other instruments as we have deemed necessary as
a basis for the opinions expressed herein. Insofar as the opinions expressed herein involve factual matters,
Teva Pharmaceutical Industries Limited
and its Finance Subsidiaries
February 9, 2015
Page
3
we have relied (without independent factual investigation), to the extent we deemed proper or necessary, upon certificates of, and other communications with, officers and employees of the
Companies and upon certificates of public officials. In addition, our opinions in paragraph (1) below are based solely upon certificates of good standing issued by the Secretary of State of Delaware.
In making the examinations described above, we have assumed the genuineness of all signatures, the capacity of natural persons, the
authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such documents.
In connection with the opinions as to enforceability expressed below, such enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting creditors rights generally, subject to general principles of equity and to limitations on availability of equitable relief, including specific performance (regardless
of whether such enforceability is considered in a proceeding in equity or at law) or by an implied covenant of good faith and fair dealing.
In connection with all of the opinions expressed below, we have assumed that, at or prior to the time of the delivery of any such security, (i) the Board of Directors (or the relevant equivalent)
with respect to the relevant Company shall have duly established the terms of such security and duly authorized the issuance and sale of such security and such authorization shall not have been modified or rescinded; (ii) such parties other
than the LLCs shall have the power, corporate or other, to enter into and perform all obligations in accordance with the documents to be executed by such parties; (iii) all such documents will be governed by the internal laws of the State of
New York; (iv) upon the execution and delivery by such parties other than the Companies of such documents, that such documents shall constitute valid and binding obligations of such parties; (v) the Registration Statement shall have been
automatically declared effective and such effectiveness shall not have been terminated or rescinded; (vi) the Deposit Agreement will not have been terminated or modified subsequent to the date thereof and remains in full force and effect; and
(vii) there shall not have occurred any change in law affecting the validity or enforceability of such security. We have also assumed that none of the terms of any security to be established subsequent to the date hereof, nor the issuance and
delivery of such security, nor the compliance by the Companies with the terms of such security will violate any applicable law or will result in a violation of any provision of any instrument or agreement then binding upon the relevant Company, or
any restriction imposed by any court or governmental body having jurisdiction over the relevant Company.
Based upon and
subject to the foregoing, we are of the opinion that:
|
1) |
Each of the LLCs is validly existing in good standing as a limited liability company under the Delaware Limited Liability Company Act.
|
Teva Pharmaceutical Industries Limited
and its Finance Subsidiaries
February 9, 2015
Page
4
|
2) |
Assuming the Deposit Agreement has been duly authorized, executed and delivered by the parties thereto, when ADSs are issued in accordance with the
Deposit Agreement against the deposit of duly authorized, validly issued, fully paid and non-assessable Ordinary Shares, such ADSs will be validly issued and will entitle the holders thereof to the rights specified therein.
|
|
3) |
When the Teva Indentures have been duly authorized, executed and delivered by the parties thereto, and when the specific terms of a particular
series of Teva Debt Securities have been duly authorized and established in accordance with the relevant Teva Indenture and such Teva Debt Securities have been duly authorized, executed, authenticated, issued and delivered in accordance with the
relevant Teva Indenture and any applicable underwriting or other agreement, such Teva Debt Securities will constitute valid and binding obligations of Teva, enforceable against Teva in accordance with its terms. |
|
4) |
When a Finance Subsidiary Indenture has been duly authorized, executed and delivered by the parties thereto, and when the specific terms of a
particular series of Finance Subsidiary Debt Securities have been duly authorized and established in accordance with such Finance Subsidiary Indenture and such Finance Subsidiary Debt Securities have been duly authorized, executed, authenticated,
issued and delivered in accordance with such Finance Subsidiary Indenture and any applicable underwriting or other agreement, such Finance Subsidiary Debt Securities will constitute valid and binding obligations of such Finance Subsidiary, and
Tevas guarantee under each Finance Subsidiary Indenture with respect to such Finance Subsidiary Debt Securities will constitute the valid and binding obligation of Teva, enforceable against such Finance Subsidiary and Teva, as applicable, in
accordance with its terms. |
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5) |
When the Warrants have been duly authorized by Teva, the applicable warrant agreement and the applicable warrant certificates have been duly issued
and delivered by Teva as described in the Registration Statement and any prospectus supplement relating thereto, the Warrants will constitute valid and binding obligations of Teva, enforceable against Teva in accordance with their terms.
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6) |
When the Purchase Contracts have been duly authorized by Teva, and the applicable purchase contract agreement has been duly authorized, executed and
delivered as described in the Registration Statement and any prospectus supplement relating thereto, the Purchase Contracts will constitute valid and binding obligations of Teva, enforceable against Teva in accordance with their terms.
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7) |
When the Units have been duly authorized by Teva, all corporate action on the part of Teva has been taken to authorize and execute and deliver or
issue the securities underlying such Units, and any applicable unit agreement has been duly authorized, executed and delivered, such unit agreement will constitute valid and binding obligations of Teva, enforceable against Teva in accordance with
their terms. |
Teva Pharmaceutical Industries Limited
and its Finance Subsidiaries
February 9, 2015
Page
5
Our opinions set forth herein are based upon our consideration of only those statutes,
rules and regulations which, in our experience, are normally applicable to issuers of securities of the nature of the securities described herein.
The opinions expressed herein are limited to matters governed by the federal laws of the United States of America, the laws of the State of New York and the Delaware Limited Liability Company Act, and we
express no opinion with respect to the laws of any other country, state or jurisdiction.
We hereby consent to the filing of
this opinion as an exhibit to the Registration Statement. By giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations issued or promulgated
thereunder.
This opinion is being delivered to you for your information in connection with the above matter and addresses
matters only as of the date hereof.
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Very truly yours, |
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/s/ Willkie Farr & Gallagher LLP |
Exhibit 5.3
Teva Pharmaceutical Industries Limited
Teva Pharmaceutical Finance IV, LLC
Teva Pharmaceutical Finance V, LLC
Teva
Pharmaceutical Finance VI, LLC
Teva Pharmaceutical Finance IV B.V.
Teva Pharmaceutical Finance V B.V.
Teva Pharmaceutical Finance Company B.V.
Teva Pharmaceutical Finance N.V.
Teva
Pharmaceutical Finance Netherlands II B.V.
c/o Teva Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131 Israel
Re: |
Registration Statement on Form F-3 re:, Teva Pharmaceutical Finance IV B.V., Teva Pharmaceutical Finance V B.V., Teva Pharmaceutical Finance Company B.V. and Teva
Pharmaceutical Finance N.V. |
Curaçao, 9 February 2015
Ladies and Gentlemen,
We refer to the
Registration Statement on Form F-3 prepared and filed by Teva Pharmaceutical Industries Limited, an Israeli corporation (Teva), and the Finance Subsidiaries (as hereinafter defined) with the Securities and Exchange Commission
(the Commission) pursuant to the Securities Act of 1933, as amended (the Act), on or about the date hereof. We have acted as Curaçao legal advisers to Teva Pharmaceutical Finance IV B.V., a
Curaçao private limited liability company (Teva Finance IV BV), Teva Pharmaceutical Finance V B.V., a Curaçao private limited liability company (Teva Finance V BV), Teva Pharmaceutical Finance
Company B.V., a Curaçao private limited liability company (Teva Finance Company BV) and Teva Pharmaceutical Finance N.V., a Curaçao public limited liability company (Teva Finance NV, together with
Teva Finance IV BV, Teva Finance V BV and Teva Finance Company BV, the
2
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Curaçao Entities) in connection with the preparation and filing of the Registration Statement on Form F-3 by Teva, Teva Pharmaceutical Finance IV, LLC, a Delaware
limited liability company (Teva Finance IV LLC), Teva Pharmaceutical Finance V, LLC, a Delaware limited liability company (Teva Finance V LLC), Teva Pharmaceutical Finance VI, LLC, a Delaware limited liability
company (Teva Finance VI LLC, together with Teva Finance IV LLC and Teva Finance V LLC, the Delaware Entities), and Teva Pharmaceutical Finance Netherlands II B.V., a Dutch private limited liability company
(Teva Finance Netherlands BV, together with the Delaware Entities and the Curaçao Entities, the Finance Subsidiaries) (the Registration Statement on Form F-3, the Registration
Statement), with the Commission pursuant to the Act today for the purpose of providing for the registration of, among other things, the sale from time to time by each of the Curacao Entities of (i) senior debt securities, guaranteed
by Teva, which may be issued pursuant to a senior indenture to be executed by the applicable Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee, and (ii) subordinated debt securities guaranteed by Teva (the senior debt
securities and subordinated debt securities, collectively, the Debt Securities), which may be issued pursuant to a subordinated indenture to be executed by the applicable Finance Subsidiary, Teva and The Bank of New York Mellon,
as trustee (each such subordinated indenture and each such senior indenture, an Indenture and, collectively, the Indentures).
For the purposes of this opinion, we have examined and relied only on the documents listed in Schedule 1 and Schedule 2, which shall form part of this opinion.
The documents listed in Schedule 1 are referred to as the Documents and the documents listed in Schedule 2 as the
Certificates.
Unless otherwise defined in this opinion or unless the context otherwise requires, words and expressions
defined in the Documents shall have the same meanings when used in this opinion.
In connection with such examination and in giving this
opinion, we have assumed:
(i) |
the genuineness of the signatures to the Documents and the Certificates, the authenticity and completeness of the Documents and the Certificates submitted to us as
originals, the conformity to the original documents of the Documents and the Certificates submitted to us as copies and the authenticity and completeness of those original documents; |
(ii) |
the legal capacity (handelingsbekwaamheid) of the natural persons acting on behalf of the parties, the due incorporation and valid existence of, the power,
authority and legal rights of, and the due authorization and execution of the Documents by, the parties thereto (other than the Curacao Entities) under any applicable law (other than Curaçao law); |
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(iii) |
the due compliance with all matters of, and the validity, binding effect and enforceability of the Documents under, any applicable law (other than Curaçao law)
and in any jurisdiction (other than Curaçao) in which an obligation under the Documents falls to be performed; |
(iv) |
the accuracy, completeness, validity and binding effect of the Certificates and the matters certified or evidenced thereby at the date hereof and any other relevant
date; |
(v) |
the due execution by the parties thereto of the Documents submitted to and examined by us in draft in the form of those drafts; and |
(vi) |
that the Curacao Entities will be granted an exemption from article 45 of the National Ordinance on the Supervision of Banking and Credit Institutions 1994 (NG 1994,
no. 4) issued by the Central Bank of Curaçao and Sint Maarten with respect to the issuance of notes. |
This opinion is
given only with respect to Curaçao law as generally interpreted and applied by the Curaçao courts at the date of this opinion. The term Curaçao does not include Aruba, Sint Maarten and the Dutch Caribbean (Bonaire,
Saba and Statia) which are separate jurisdictions. Since 10 October 2010 the Netherlands Antilles ceased to exist as a country and Curaçao became a separate country within the Kingdom of the Netherlands. As to matters of fact we have
relied on the Certificates and the representations and warranties contained in or made pursuant to the Documents and the Certificates. We do not express an opinion on the completeness or accuracy of the representations or warranties made by the
parties to the Documents, matters of fact, matters of foreign law (other than Curaçao law), international law, including, without limitation, the law of the European Union, and tax, anti-trust and
competition law, except to the extent that those representations and warranties and matters of fact and law are explicitly covered by the opinions below. No opinion is given on commercial, accounting or
non-legal matters or on the ability of the parties to meet their financial or other obligations under the Documents.
Based on and subject to the foregoing, and subject to the qualifications set out below and matters of fact, documents or events not disclosed to us, we express the following opinions:
1. |
Each of the Curacao Entities is a limited liability company in the form of a naamloze or besloten vennootschap, respectively, duly organized
and existing under the laws of Curaçao and has all requisite corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and as set forth in the purpose clause (Article 2) of its
articles of incorporation. Each of the Curacao Entities has been duly registered with the Chamber of Commerce and Industry at Curaçao. |
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2. |
When each of the Curacao Entities Indentures have been duly authorized, executed and delivered by the parties thereto in accordance with the forms thereof that we
have reviewed, and when the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with the relevant Curacao Entitys Indenture and such Debt Securities have been duly authorized,
executed, authenticated, issued and delivered in accordance with the relevant Indenture and any applicable underwriting or other agreement, such Debt Securities will constitute valid and binding obligations of the applicable Curacao Entity,
enforceable against such Curacao Entity in accordance with its terms. |
3. |
Each of the Curacao Entities has the corporate power and authority to execute the Documents, to perform its obligations thereunder and to consummate the transactions
contemplated therein. |
4. |
Each of the Curacao Entities has taken all necessary corporate action to authorize the execution and delivery of the Registration Statement and the performance of its
obligations thereunder. |
5. |
Except for the licenses and exemptions mentioned in paragraph (vi) above and the business licenses and foreign exchange exemptions as referred to in Schedule 2 for
each of the Curacao Entities, no other consent, approval, authorization or order of, of qualification, filing or registration with, any governmental body or agency in Curaçao or any Curaçao person having due authority over the Curacao
Entities, is required for the execution, delivery or performance by each of the Curacao Entities of its obligations under the Documents or the consummation of the transactions contemplated thereby, except as set forth in paragraph 6 of this opinion.
|
6. |
It is not necessary in order to ensure the validity, enforceability or admissibility in evidence of the Documents against the Curacao Entities in the Curaçao
courts, that the Documents or any other document in connection therewith be filed, registered or recorded with governmental, judicial or public bodies or authorities in Curaçao or that any other action be taken in Curaçao, except for
registration (date stamping) by the Inspector of Taxes in Curaçao of the Documents if and when such Documents are to be used as evidence in the Curaçao courts. |
7. |
The choice of the laws of the State of New York to govern the Documents is a valid choice of law and would be upheld by the Curaçao courts and the laws of the
State of New York would accordingly be applied by the Curaçao courts if such Documents or any claim thereunder comes under their jurisdiction upon proper proof of the relevant provisions of such laws. |
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8. |
A submission by the Curacao Entities in the Documents to the non-exclusive jurisdiction of the federal or state court sitting in
New York City is valid and legally binding on the Curacao Entities and would be upheld by the Curaçao courts, except that such submission does not preclude that claims for provisional measures, claims below the amount of ANG 10,000 (USD
5,600) or the equivalent thereof, or requests to levy pre-trial attachments (conservatoire beslagen) be brought before the competent Curaçao court. |
9. |
The United States and Curaçao do not currently have a treaty providing for reciprocal recognition and enforcement of judgments in civil and commercial matters.
Therefore, a final judgment rendered by a New York court would not automatically be enforceable in Curaçao. However, a final judgment obtained in a New York court and not rendered by default, which is not subject to appeal or other means of
contestation and is enforceable in New York with respect to the payment obligations of any of the Curacao Entities under the Documents would generally be upheld and be regarded by a Curaçao court of competent jurisdiction as conclusive
evidence when asked to render a judgment in accordance with that judgment by a New York court, without substantive re-examination or re-litigation of the merits of the
subject matter thereof, if that judgment has been rendered by a court of competent jurisdiction, in accordance with the principles of natural justice, its content and enforcement do not conflict with Curaçao public policy and it has not been
rendered in proceedings of a penal or revenue or other public law nature. |
10. |
In proceedings undertaken in Curaçao, neither the Curacao Entities nor any of their assets are immune from legal action or proceeding (including, without
limitation, suit, attachment prior to judgment, execution or other legal process). |
11. |
Each of the Documents if and when duly executed and authenticated, is in proper form for its enforcement in the Curaçao courts. |
The opinions expressed above are subject to the following qualifications:
(A) |
Our opinions expressed herein are subject to and limited by applicable bankruptcy, insolvency, reorganization, suspension of payment and other laws relating to or
affecting the rights of creditors or secured creditors generally. |
(B) |
The enforcement in Curaçao of the Documents is subject to the Curaçao rules of civil procedure as applied by the Curaçao courts.
|
- 5 -
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(C) |
The Curaçao courts may render judgments for a monetary amount in foreign currencies, but those foreign currency amounts may be converted into Netherlands
Antilles Guilders for enforcement purposes. Foreign currency amounts claimed in a Curaçao (provisional) suspension of payment or bankruptcy proceeding will be converted into Netherlands Antilles Guilders at the rate prevailing at the date of
commencement of that proceeding. |
(D) |
A choice of the laws of the State of New York to govern the Documents would be upheld by the Curaçao courts, except that under the rules of Curaçao
private international law (and those of the Convention on the Law Applicable to Contractual Relations of 19 June 1980 (the Rome Convention)), effect may be given to the mandatory rules of the law of another country with
which the situation has a close connection, if and insofar as, under the law of that other country, those rules must be applied whatever the law applicable to the contract (Article 7 of the Rome Convention). With the express reservation that we are
not qualified to assess the exact meaning and consequences of the respective terms and conditions of the Documents under foreign law, on the face of the Documents, we are not aware of any term or condition therein which is likely to give rise to
situations where the mandatory rules of Curaçao law will be applied by the Curaçao courts irrespective of the law otherwise applicable to the Documents or which appear to be prima facie manifestly incompatible with
Curaçao public policy. |
(E) |
Under the Curaçao rules of corporate benefit and fraudulent preference, the validity of a legal act (such as the execution of an agreement or the giving of
guarantees or security) performed by a company or governed by Curaçao law may be contested. Without purporting to be comprehensive, we would particularly draw your attention to the following: |
|
(a) |
the validity of a legal act performed by a company may be contested by the company or, in case of its bankruptcy, its public receiver in bankruptcy (curator), if
as a result the objects as stated in the articles of the company or the principles of corporate (financial) benefit are transgressed and the party which dealt with the company is aware of this transgression or, without personal investigation, should
have been so aware; and |
|
(b) |
if a legal act performed by a company is prejudicial to the interests of the creditors of that company, the validity of that legal act may in certain circumstances be
contested by those creditors or the public receiver in bankruptcy of that company. |
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(F) |
A power of attorney granted by a Curaçao company will automatically, i.e. by operation of law, terminate upon the bankruptcy of that company or become
ineffective, when that company has been granted a (provisional) suspension of payment. To the extent that the appointment of a process agent by a company constitutes the granting of a power of attorney to that process agent, the service of process
on that agent on or after the date on which that company has been declared bankrupt or it has been granted a (provisional) suspension of payment, would not be valid and effective, except to the extent authorized by the public receiver in bankruptcy
(curator) or administrator (bewindvoerder), as the case may be. |
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement. By giving our consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations promulgated thereunder.
This opinion is being delivered to you for your information in connection with the above matter and addresses matters only as of the date hereof. This
opinion, which is strictly limited to the matters stated herein and which is not to be read as extending by implication to any other matter, is given on the basis that it is governed by and to be construed in accordance with Curaçao law and
that any action, arising out of it, is to be determined by the competent court in Curaçao which shall have exclusive jurisdiction in relation thereto. The partnership VanEps Kunneman VanDoorne has limited its liability to any proceeds
available under the partnerships professional liability insurance, and reliance by anyone on this opinion will be deemed acceptance of such choice of law and forum and limitation of liability. We do not assume any obligation to advise you (or
any other person entitled to rely on this opinion) of any subsequent change in, or in the interpretation of, Curaçao law.
Yours
faithfully,
|
VANEPS KUNNEMAN VANDOORNE |
|
/s/ F.W. Lunsingh Scheurleer |
F.W. Lunsingh Scheurleer |
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8
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SCHEDULE 1
DOCUMENTS
(a) |
A copy of the executed Registration Statement dated on or about the date hereof; and |
(b) |
copies of the forms of the Curacao Entities Indentures. |
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SCHEDULE 2
CERTIFICATES
Teva Pharmaceutical Finance IV B.V.
(a) |
a copy of the deed of incorporation, incorporating the articles (statuten), dated 28 June 2011; |
(b) |
a copy of an official extract, dated 3 February 2015, updated by a computer generated extract of even date herewith, from the Commercial Register (Handelsregister) of
the Curaçao Chamber of Commerce and Industry (Kamer van Koophandel en Nijverheid); |
(c) |
a copy of a business and directors license, dated 13 July 2011, issued by the Government of Curaçao; |
(d) |
a copy of a foreign exchange exemption, dated 21 July 2011, with registration no. 75455, issued by the Central Bank of Curaçao and Sint Maarten; and
|
(e) |
a copy of the resolutions of the Board of Managing Directors (bestuur) and Board of Supervisory Directors (raad van commissarissen), dated on or about the
date hereof. |
Teva Pharmaceutical Finance V B.V.
(f) |
a copy of the deed of incorporation, incorporating the articles (statuten), dated 28 June 2011; |
(g) |
a copy of an official extract, dated 3 February 2015, updated by a computer generated extract of even date herewith, from the Commercial Register
(Handelsregister) of the Curaçao Chamber of Commerce and Industry (Kamer van Koophandel en Nijverheid); |
(h) |
a copy of a business and directors license, dated 13 July 2011, issued by the Government of Curaçao; |
(i) |
a copy of a foreign exchange exemption, dated 21 July 2011, with registration no. 75456, issued by the Central Bank of Curaçao and Sint Maarten; and
|
(j) |
a copy of the resolutions of the Board of Managing Directors (bestuur) and Board of Supervisory Directors (raad van commissarissen), dated on or about the
date hereof. |
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Teva Pharmaceutical Finance Company B.V.
(k) |
a copy of the deed of incorporation, incorporating the articles (statuten), dated 23 November 2005; |
(l) |
a copy of the full text of the articles of association as amended, dated 7 June 2011; |
(m) |
a copy of an official extract, dated 3 February 2015, updated by a computer generated extract of even date herewith, from the Commercial Register
(Handelsregister) of the Curaçao Chamber of Commerce and Industry (Kamer van Koophandel en Nijverheid); |
(n) |
a copy of a business licence, dated 27 January 2006, issued by the Government of the Island Territory of Curaçao (het Bestuurscollege);
|
(o) |
a copy of a foreign exchange exemption, dated 30 November 2005, with registration nos. 69889 and 035648, issued by the Central Bank of Curaçao and Sint
Maarten; and |
(p) |
a copy of the resolutions of the Board of Managing Directors (bestuur) and Board of Supervisory Directors (raad van commissarissen), dated on or about the
date hereof. |
Teva Pharmaceutical Finance N.V.
(q) |
a copy of the deed of incorporation, incorporating the articles (statuten), dated 29 December 2000; |
(r) |
a copy of the full text of the articles of association as amended, dated 7 June 2011; |
(s) |
a copy of an official extract, dated 3 February 2015, updated by a computer generated extract of even date herewith, from the Commercial Register
(Handelsregister) of the Curaçao Chamber of Commerce and Industry (Kamer van Koophandel en Nijverheid); |
(t) |
a copy of a business licence, dated 15 May 2001, issued by the Government of Curaçao; |
(u) |
a copy of a foreign exchange exemption, dated 9 March 2001, with registration no. 064742, issued by the Central Bank of Curaçao and Sint Maarten; and
|
(v) |
a copy of the resolutions of the Board of Managing Directors (bestuur) dated on or about the date hereof. |
- 10 -
Exhibit 5.4
Jachthavenweg 121
1081 KM Amsterdam
P.O. Box 75265
1070
AG Amsterdam
the Netherlands
Teva Pharmaceutical Finance Netherlands II B.V.
c/o Teva
Pharmaceutical Industries Limited
5 Basel Street
P.O. Box 3190
Petach Tikva 49131 Israel
T +31 20 6789 123
F +31 20 6789 589
|
|
|
Date |
|
09 February 2015 |
Our ref. |
|
40.00.1994 |
Subject |
|
Registration Statement on Form F-3 re: Teva Pharmaceutical Finance Netherlands II B.V. |
Dear Sirs,
We
refer to the Registration Statement on Form F-3 prepared and filed by Teva Pharmaceutical Industries Limited, an Israeli corporation (Teva), and the Finance Subsidiaries (as hereinafter defined) with the Securities and Exchange Commission
(the Commission) pursuant to the Securities Act of 1933, as amended (the Act), on or about the date hereof. We have acted as Dutch legal advisers to Teva Pharmaceutical Finance Netherlands II B.V., a Dutch private limited liability
company (the Dutch Company), in connection with the preparation and filing of the Registration Statement on Form F-3 by Teva, Teva Pharmaceutical Finance IV, LLC, a Delaware limited liability company (Teva Finance IV LLC), Teva
Pharmaceutical Finance V, LLC, a Delaware limited liability company (Teva Finance V LLC), Teva Pharmaceutical Finance VI, LLC, a Delaware limited liability company (Teva Finance VI LLC, together with Teva Finance IV LLC and Teva
Finance V LLC, the Delaware Entities), Teva Pharmaceutical Finance IV B.V., a Curaçao private limited liability company (Teva Finance IV BV), Teva Pharmaceutical Finance V B.V., a Curaçao private limited liability company
(Teva Finance V BV), Teva Pharmaceutical Finance Company B.V., a Curaçao private limited liability company (Teva Finance Company BV) and Teva Pharmaceutical Finance N.V., a Curaçao public limited liability company
(Teva Finance NV, together with Teva Finance IV BV, Teva Finance V BV and Teva Finance Company BV, the Curaçao Entities, and the Curaçao Entities, together with the Delaware Entities and the Dutch Company, the Finance
Subsidiaries)(the Registration Statement on Form F-3, the Registration Statement), with the Commission pursuant to the Act on or about the date hereof for the purpose of providing for the registration of the sale from time to time by,
among others, the Dutch Company of (i) senior debt securities, guaranteed by Teva, which may be issued pursuant to senior indenture to be executed by the applicable Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee, and
(ii) subordinated debt securities guaranteed by Teva
page
2
09 Feb 2015
(the senior debt securities and subordinated debt securities, collectively, the Debt Securities), which may be issued pursuant to a subordinated indenture to be executed by the applicable
Finance Subsidiary, Teva and The Bank of New York Mellon, as trustee (each such subordinated indenture and each such senior indenture, an Indenture and, collectively, the Indentures).
For the purpose of this opinion, we have examined and relied only on the documents listed in Schedule 2 (Documents) and Schedule 3 (Corporate
Documents), which shall form part of this opinion.
The documents listed in Schedule 2 are referred to as the Documents and the
documents listed in Schedule 3 as the Corporate Documents.
Unless otherwise defined in this opinion (including Schedule 1) or unless
the context otherwise requires, words and expressions defined in the Documents shall have the same meanings when used in this opinion.
In
connection with such examination and in giving this opinion, we have assumed:
(i) |
the genuineness of the signatures to the Documents and the Corporate Documents, the authenticity and completeness of the Documents and the Corporate Documents submitted
to us as originals, the conformity to the original documents of the Documents and Corporate Documents submitted to us as copies and the authenticity and completeness of those original documents; |
(ii) |
the due incorporation and valid existence of, the corporate power and authority of and the due authorization and execution of the Documents by, each of the parties
thereto (other than the Dutch Company) under any applicable law (other than Dutch law); |
(iii) |
the due compliance with all matters of, and the validity, binding effect and enforceability of the Documents under, any applicable law (other than Dutch law) and in any
jurisdiction (other than the Netherlands) in which an obligation under the Documents falls to be performed; |
(iv) |
the due authorization and due execution by the Dutch Company of the Documents submitted to and examined by us in draft in the form of those drafts;
|
(v) |
that (1) no defects (gebreken) attach to the formation (totstandkoming) of the Dutch Company not appearing on the face of the Deed of Incorporation
and the Deed of Incorporation has been signed by a Dutch civil-law notary (notaris) and (2) the Extract accurately and completely reflects the matters purported to be confirmed or evidenced thereby; |
(vi) |
that (1) no resolution for the dissolution (ontbinding) of the Dutch Company has been taken and no application has been made for the (opening of) any
Insolvency Proceeding in respect of the Dutch Company, (2) the Dutch Company has not been dissolved, (3) the Dutch Company is not subject to any Insolvency Proceeding and (4) no order for the administration of assets of the Dutch
Company has been made; although not constituting conclusive evidence thereof, the assumptions referred to under (2) and (4) and the assumption under (3) as to Dutch Insolvency Proceedings and EU Insolvency Proceedings, are supported
by the Extract and the Corporate Enquiries; |
- 2 -
page
3
09 Feb 2015
(vii) |
that no party to the Documents is controlled by or otherwise connected with a person, organisation or country which is subject to United Nations, European Union or
Dutch sanctions implemented or effective in the Netherlands under or pursuant to the Sanction Act 1977 (Sanctiewet 1977), the Economic Offences Act (Wet economische delicten), the General Customs Act (Algemene Douanewet) or
Regulations of the European Union; |
(viii) |
that the Dutch Company does not take deposits or other repayable funds from the public within the meaning of the European Regulation No. 575/2013 on prudential
requirements for credit institutions and investment firms and the Debt Securities will not be offered in the Netherlands; |
(ix) |
that the execution of and performance under the Documents by the Dutch Company are not prohibited or affected by contractual restrictions or obligations binding on the
Dutch Company; and |
(x) |
that any foreign law which may apply with respect to any of the Documents or the transactions contemplated thereby does not affect this opinion.
|
This opinion is only given with respect to Dutch law in force as at the date hereof and as generally interpreted on the basis
of case-law published at the date hereof. We do not express any opinion on: (i) matters of fact or the completeness or accuracy of the representations or warranties made pursuant to the Documents, (ii) matters of foreign law, international
law (including the law of the European Union to the extent not directly applicable in the Netherlands), tax law (except for any specific tax opinions contained herein) and anti-trust and competition law (including the law of the European Union in
respect of antitrust and competition), and (iii) commercial, accounting or non-legal matters or on the ability of the parties to meet their financial or other obligations under the Documents. We do not assume any obligation to advise the Dutch
Company (or any other person entitled to rely on this Opinion Letter) of subsequent changes in Dutch law or in the interpretation thereof.
Based on and subject to the foregoing and subject to the qualifications set out below and matters of fact, documents or events not disclosed to us, we
express the following opinions:
1. |
The Dutch Company is duly incorporated and exists under Dutch law as a private company with limited liability (besloten vennootschap met beperkte
aansprakelijkheid) and has all requisite corporate power and authority to own its properties and to conduct its business as described in the Registration Statement and as set forth in the purpose clause (Article 2) of its Articles of
Association. |
2. |
When the relevant Indenture has been duly authorized, executed and delivered by the parties thereto (including the Dutch Company) in accordance with
the forms thereof that we have reviewed, and when the specific terms of a particular series of Debt Securities have been duly authorized and established in accordance with that Indenture and such Debt Securities have been duly authorized, executed,
authenticated, issued and delivered in accordance with the |
- 3 -
page
4
09 Feb 2015
|
relevant Indenture and any applicable underwriting agreement or other agreement, such Debt Securities will, as a matter of Dutch law, constitute valid and binding obligations of the Dutch
Company, enforceable against the Dutch Company in accordance with its terms. |
3. |
The Dutch Company has the corporate power and authority to execute the Indentures, to perform its obligations thereunder and to consummate the transactions contemplated
therein. |
4. |
The Registration Statement has been duly signed on behalf of the Dutch Company. |
5. |
No authorisations, consents, approvals, licences or exemptions from governmental, judicial or public bodies or authorities in the Netherlands are required for the
entering into the Indentures by the Dutch Company and the performance of its obligations thereunder. |
6. |
It is not necessary in order to ensure the validity, enforceability or admissibility in evidence in the Dutch courts of the Indentures, that the Indentures or any other
document in connection therewith be filed, registered or recorded with governmental, judicial or public bodies or authorities in the Netherlands. |
7. |
The Dutch courts will recognise the choice of the laws of the State of New York to govern the Indentures. |
8. |
The Dutch courts will recognise the submission by the Dutch Company in the Indentures to the jurisdiction of the federal or state court sitting in New York City.
|
9. |
A judgment by a federal or state court sitting in New York City is not enforceable in the Netherlands, but a final judgment obtained in such a court and not rendered by
default and which is not subject to appeal or other means of contestation and is enforceable in New York City with respect to the payment obligations of the Dutch Company under the Indentures would generally be upheld and be regarded by a Dutch
court of competent jurisdiction as conclusive evidence when asked to render a judgment in accordance with that judgment by a federal or state court sitting in New York City, without substantive re-examination or re-litigation on the merits of the
subject matter thereof, provided that the judgment has been rendered by a court of competent jurisdiction, in accordance with the principles of natural justice, its content and enforcement do not conflict with Dutch public policy and that it has not
been rendered in proceedings of a penal or revenue or other public law nature. |
11. |
In proceedings taken in the Netherlands neither the Dutch Company nor any of its assets is immune from legal action or proceeding (including, without limitation, suit,
attachment prior to judgment, execution or other legal process), except for assets located in the Netherlands which are designated for public service (goederen bestemd voor de openbare dienst) and the books and records of the Dutch Company.
|
- 4 -
page
5
09 Feb 2015
The opinions expressed above are subject to the following qualifications:
(A) |
Our opinions expressed herein are subject to and limited by (i) Dutch or foreign laws and regulations applicable to Insolvency Proceedings, including laws and
regulations of general application relating to or affecting the rights of creditors or secured creditors and (ii) the provisions of the Insolvency Regulation. |
(B) |
In applying the laws of the State of New York as the law governing the Indentures, the Dutch courts may, under the rules of Dutch civil international law and of the
Rome I Regulation, (i) give effect to the overriding mandatory rules of Dutch law irrespective of the law otherwise applicable to the Indentures (Article 9(2) of the Rome I Regulation), (ii) give effect to the overriding mandatory rules of
the law of the country where any obligation under the Indentures needs to be or has been performed, insofar as those rules render the performance of the Indentures unlawful (Article 9(3) of the Rome I Regulation) and (iii) refuse the
application of a term or condition of the Indentures or a rule of foreign law applicable thereto under the Rome I Regulation, if that application is manifestly incompatible with Dutch public policy (Article 21 of the Rome I Regulation). With the
express reservation that we are not qualified to assess the exact meaning and consequences of the respective provisions of the Indentures since they are not governed by Dutch law, on the face thereof we are not aware of any provision therein which
is likely to give rise to situations where the overriding mandatory rules of Dutch law as currently in force will be applied by the Dutch courts or which appear to be prima facie manifestly incompatible with Dutch public policy as it
currently stands. |
(C) |
The term enforceable used in the opinions above means that the obligations assumed by the relevant party under the relevant document are of a type which the
Dutch courts generally enforce and does not mean that those obligations will be necessarily enforced in accordance with their terms under all circumstances. In particular, the availability in the Dutch courts of remedies, such as injunction and
specific performance is at the discretion of the Dutch courts. The enforcement in the Netherlands of the Documents is subject to the Dutch rules of civil procedure as applied by the Dutch courts. |
(D) |
Foreign currency amounts claimed in a Dutch Insolvency Proceeding will be converted into euro for enforcement purposes at the rate prevailing at the commencement of
such Dutch Insolvency Proceeding. In addition, foreign currency amounts may have to be converted into euro for enforcement purposes. |
(E) |
Under the Dutch rules on corporate benefit and fraudulent preference, the validity of a transaction (such as the execution of an agreement or the giving of guarantees
or security) entered into by the Dutch Company may be contested. In particular: |
|
(a) |
the validity of a transaction entered into by the Dutch Company may be contested by the Dutch Company or the public receiver (curator) in its Insolvency Proceeding (or
similar officer under any foreign Insolvency Proceeding), if as a result its objects (doel) are transgressed and the counterparty was aware of the transgression or, without personal investigation, should have been so aware; and
|
- 5 -
page
6
09 Feb 2015
|
(b) |
if a transaction entered into by the Dutch Company is prejudicial to the interests of its creditors, the validity of such transaction may in certain circumstances be
contested by such creditors or the public receiver in an Insolvency Proceeding of the Dutch Company; |
(F) |
Notwithstanding the submission by the Dutch Company in the Indentures to the jurisdiction of the federal or state courts sitting in New York City, not all procedures of
such courts (such as discovery or compulsion of witnesses) may be available against the Dutch Company in the Netherlands. In addition, a competent court in The Netherlands may assume jurisdiction (i) if the defendant enters an appearance and
does not contest the jurisdiction prior to defences relating to the merits, (ii) in urgent matters, when, in view of the interests of the parties, provisional measures are required in summary proceedings, and (iii) in the context of a
request to levy pre-trial attachments (conservatoire beslagen) against the Dutch Company or its assets. The Dutch courts may stay or refer proceedings if concurrent proceedings are brought elsewhere. |
(G) |
Under Dutch law there is some doubt whether the Dutch Company may elect domicile outside the Netherlands for service of process purposes. It is therefore advisable that
service of process is also effected against the Dutch Company in the Netherlands. |
(H) |
A power of attorney granted by the Dutch Company will automatically terminate and become ineffective upon any Insolvency Proceeding of the Dutch Company. This may also
affect the validity of the appointment of a process agent by the Dutch Company. |
(I) |
Pursuant to the Dutch Act on Financial Supervision (Wet op het financieel toezicht) persons, firms or companies (regardless of where they are domiciled) may only
provide intermediary services in The Netherlands in respect of the Debt Securities if they are licensed by the Netherlands Authority for the Financial Markets (Autoriteit Financiële Markten) or exempt from such license requirement.
|
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. By giving our consent, we do not
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations promulgated thereunder.
This opinion is being delivered to you for your information in connection with the above matter and addresses matters only as of the date hereof. This opinion is strictly limited to the matters stated
herein and is not to be read as extending by implication to any other matters in connection with the Documents or the Corporate Documents or otherwise. This opinion is given subject to and may only be relied upon by you on the express conditions
that (i) Van Doorne N.V. is the party issuing this opinion, (ii) any liability of individual persons or legal entities involved in the services provided by or on behalf of Van Doorne N.V. is expressly excluded (uitgesloten),
(iii) in respect of Dutch legal concepts, which are expressed in this opinion in English terms, the original Dutch terms will prevail, (iv) this opinion and the opinions given herein are governed by Dutch law, (v) all disputes arising
from or in connection with this opinion must be submitted to the exclusive jurisdiction of, and will be exclusively decided by, the competent court in Amsterdam, the Netherlands, without prejudice to the right of appeal and appeal to the Supreme
Court, and (vi) the aggregate liability of Van Doorne N.V. (and the individual persons and legal entities involved in the services provided by or on behalf of Van Doorne N.V) in respect of this opinion towards the Dutch Company and any other
person will be limited to the
- 6 -
page
7
09 Feb 2015
amount which can be claimed under the professional liability insurance(s) taken out by Van Doorne N.V., increased by the amount which Van Doorne N.V. has to bear as their own risk pursuant to the
terms of such insurance(s).
Yours faithfully,
|
|
/s/ Van Doorne N.V. |
Van Doorne N.V. |
- 7 -
page
8
09 Feb 2015
SCHEDULE 1
DEFINITIONS AND INTERPRETATION
|
a) |
Any reference in this opinion to a person includes any individual person, firm, partnership, company, corporation, government agency or administrative body
or any other legal entity. |
|
b) |
Any reference in this opinion made to the laws of the Netherlands or Dutch law or to the Netherlands in a geographical sense, should be read as:
|
|
(i) |
a reference to the laws as in effect in that part of the Kingdom of the Netherlands that is located in Continental Europe (Europese deel van Nederland);
|
|
(ii) |
a reference to the geographical part of the Kingdom of the Netherlands that is located in Continental Europe. |
In this opinion:
Articles of Association has the meaning given thereto in Schedule 3;
Commercial Register means the Commercial Register (Handelsregister) of the Dutch Chambers of Commerce (Kamers van
Koophandel);
Corporate Enquiries means:
|
(a) |
an online enquiry at the Commercial Register (Handelsregister), obtaining the Extract as per the date of this opinion; |
|
(b) |
an online enquiry on the relevant website (www.rechtspraak.nl) with the Central Insolvency Register (Centraal Insolventie Register) confirming that the Dutch
Company is not listed with the Central Insolvency Register; |
|
(c) |
an online enquiry on the relevant website (www.rechtspraak.nl) of the EU Registrations with the Central Insolvency Register (Centraal Insolventie Register)
confirming that the Dutch Company is not listed on the EU Registrations with the Central Insolvency Register; and |
|
(d) |
an online enquiry on the relevant website (http://eur-lex.europe.eu/) of the Annex to Council regulation (EC) No 2580/2001, Annex I of Council regulation (EC) No
881/2002 and the Annex to Council Common Position 2001/931 relating to measures to combat terrorism, all as amended from time to time, confirming that the Dutch Company is not listed on such annexes. |
- 8 -
page
9
09 Feb 2015
Deed of Incorporation has the meaning given thereto in Schedule 3;
EC Jurisdiction Regulation means the Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the
recognition and enforcement of judgements in civil and commercial matters;
Extract has the meaning given thereto in
Schedule 3;
Insolvency Date means any day on which the Dutch Company becomes subject to an Insolvency Proceeding;
Insolvency Proceeding means a bankruptcy (faillissement), a (provisional) suspension of payment
((voorlopige) surseance van betaling) or any other Dutch or foreign insolvency proceeding howsoever named (including without limitation any insolvency proceeding referred to in the Insolvency Regulation or in annex A or annex B to that
Regulation);
Insolvency Regulation means the Council Regulation (EC) No. 1346/2000 of 29 May 2000 on
insolvency proceedings; and
Rome I Regulation means the Regulation (EC) No. 593/2008 of the European Parliament
and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I).
- 9 -
page
10
09 Feb 2015
SCHEDULE 2
DOCUMENTS
(a) |
A copy of the signed Registration Statement dated on or about the date hereof; and |
(b) |
copies of the forms of the Indentures. |
- 10 -
page
11
09 Feb 2015
SCHEDULE 3
CORPORATE DOCUMENTS
(a) |
A copy of the deed of incorporation of the Dutch Company dated 16 October 2013 (the Deed of Incorporation); |
(b) |
a copy of the deed dated 14 November 2013 for the amendment of the articles of association (statuten) of the Dutch Company (the Articles of
Association); and |
(c) |
an extract in respect of the Dutch Company from the Commercial Register dated the date of this opinion (the Extract). |
- 11 -
Exhibit 12.1
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, |
|
|
|
2014 |
|
|
2013 |
|
|
2012 |
|
|
2011 |
|
|
2010 |
|
|
|
|
|
|
(U.S. dollars in millions, except ratios) |
|
Earnings |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Pre-tax income from continuing operations before adjustments for minority interests in consolidated subsidiaries or income or
loss from equity investments |
|
|
3,638 |
|
|
|
1,250 |
|
|
|
1,819 |
|
|
|
2,956 |
|
|
|
3,646 |
|
|
|
|
|
|
|
Fixed charges, as below |
|
|
336 |
|
|
|
340 |
|
|
|
388 |
|
|
|
257 |
|
|
|
235 |
|
|
|
|
|
|
|
Interest capitalized, less amortization of capitalized interest |
|
|
(3 |
) |
|
|
(3 |
) |
|
|
(7 |
) |
|
|
(5 |
) |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
3,971 |
|
|
|
1,587 |
|
|
|
2,200 |
|
|
|
3,208 |
|
|
|
3,881 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fixed Charges |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest costs (expensed and capitalized) and amortization of issuance costs relating to long-term debentures |
|
|
285 |
|
|
|
301 |
|
|
|
344 |
|
|
|
219 |
|
|
|
203 |
|
|
|
|
|
|
|
Rentals one-third of rental expenses |
|
|
51 |
|
|
|
39 |
|
|
|
44 |
|
|
|
38 |
|
|
|
32 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total |
|
|
336 |
|
|
|
340 |
|
|
|
388 |
|
|
|
257 |
|
|
|
235 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Ratio of Earnings to Fixed Charges |
|
|
11.8 |
|
|
|
4.7 |
|
|
|
5.7 |
|
|
|
12.5 |
|
|
|
16.5 |
|
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration Statement on Form F-3 of Teva Pharmaceutical Industries Limited of our report
dated February 9, 2015, relating to the consolidated financial statements and the effectiveness of internal control over financial reporting, which appears in Teva Pharmaceutical Industries Limiteds Annual Report on Form 20-F for the year
ended December 31, 2014. We also consent to the incorporation by reference of our report dated February 9, 2015 relating to the Financial Statement Schedule, which appears in such Form 20-F. We also consent to the reference to us under the
heading Experts in such Registration Statement.
|
|
|
|
|
/s/ Kesselman & Kesselman |
Tel-Aviv, Israel |
|
Kesselman & Kesselman |
February 9, 2015 |
|
Certified Public Accountants (Isr.) |
|
|
A member firm of PricewaterhouseCoopers International Limited |
Kesselman & Kesselman, Trade Tower, 25
Hamered Street, Tel-Aviv 6812508, Israel,
P.O Box 452 Tel-Aviv 61003 Telephone: +972 -3- 7954555, Fax:+972 -3- 7954556,
www.pwc.co.il
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
(Title of the indenture securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.2
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
(Title of the indenture securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.3
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE IV, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.4
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE IV, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.5
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE V, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.6
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE V, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.7
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE VI, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.8
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE VI, LLC
(Exact name of obligor as specified in its charter)
|
|
|
Delaware |
|
22-1734359 |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
1090 Horsham Road North Wales, Pennsylvania |
|
19454 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.9
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE COMPANY B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.10
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE COMPANY B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.11
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE IV B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.12
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE IV B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.13
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE V B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.14
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE V B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.15
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE N.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.16
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE N.V.
(Exact name of obligor as specified in its charter)
|
|
|
Curaçao |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Schottegatweg Oost 29-D Curaçao |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.17
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE NETHERLANDS II B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Netherlands |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Piet Heinkade 107 1019 GM Amsterdam, Netherlands |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Senior Debt Securities
and Guarantees of Senior Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Exhibit 25.18
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT
AS TRUSTEE
¨ |
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
THE BANK OF NEW YORK MELLON
(Exact name of trustee as specified in its charter)
|
|
|
New York |
|
13-5160382 |
(Jurisdiction of incorporation
if not a U.S. national bank) |
|
(I.R.S. employer identification no.) |
|
|
One Wall Street, New York, N.Y. |
|
10286 |
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL FINANCE NETHERLANDS II B.V.
(Exact name of obligor as specified in its charter)
|
|
|
Netherlands |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
Piet Heinkade 107 1019 GM Amsterdam, Netherlands |
|
|
(Address of principal executive offices) |
|
(Zip code) |
TEVA PHARMACEUTICAL INDUSTRIES LIMITED
(Exact name of obligor as specified in its charter)
|
|
|
Israel |
|
N/A |
(State or other jurisdiction of
incorporation or organization) |
|
(I.R.S. employer identification no.) |
|
|
5 Basel Street P.O. Box 3190 Petach Tikva 4951033 Israel |
|
|
(Address of principal executive offices) |
|
(Zip code) |
Subordinated Debt Securities
and Guarantees of Subordinated Debt Securities
(Title of the indenture
securities)
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. |
|
|
|
Name |
|
Address |
Superintendent of the Department of Financial Services of the State of New York |
|
One State Street, New York, N.Y. 10004-1417, and Albany, N.Y. 12223 |
|
|
Federal Reserve Bank of New York |
|
33 Liberty Street, New York, N.Y. 10045 |
|
|
Federal Deposit Insurance Corporation |
|
Washington, D.C. 20429 |
|
|
New York Clearing House Association |
|
New York, N.Y. 10005 |
|
(b) |
Whether it is authorized to exercise corporate trust powers. |
Yes.
2. |
Affiliations with Obligor. |
If the obligor is an affiliate of the trustee, describe each such affiliation.
None.
Exhibits identified in parentheses below, on file with the Commission, are incorporated herein by reference as an exhibit hereto,
pursuant to Rule 7a-29 under the Trust Indenture Act of 1939 (the Act) and 17 C.F.R. 229.10(d).
|
1. |
A copy of the Organization Certificate of The Bank of New York Mellon (formerly known as The Bank of New York, itself formerly Irving Trust Company) as now in effect,
which contains the authority to commence business and a grant of powers to exercise corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1 filed with Registration Statement No. 33-6215,
Exhibits 1a and 1b to Form T-1 filed with Registration Statement No. 33-21672, Exhibit 1 to Form T-1 filed with Registration Statement No. 33-29637, Exhibit 1 to Form T-1 filed with Registration Statement No. 333-121195 and Exhibit 1
to Form T-1 filed with Registration Statement No. 333-152735). |
|
4. |
A copy of the existing By-laws of the Trustee (Exhibit 4 to Form T-1 filed with Registration Statement No. 333-188382). |
|
6. |
The consent of the Trustee required by Section 321(b) of the Act (Exhibit 6 to Form T-1 filed with Registration Statement No. 333-188382).
|
|
7. |
A copy of the latest report of condition of the Trustee published pursuant to law or to the requirements of its supervising or examining authority.
|
SIGNATURE
Pursuant to the requirements of the Act, the trustee, The Bank of New York Mellon, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of
eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on the 3rd day of February, 2015.
|
|
|
|
|
THE BANK OF NEW YORK MELLON |
|
|
By: |
|
/s/ Joellen McNamara |
|
|
Name: |
|
Joellen McNamara |
|
|
Title: |
|
Vice President |
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
MELLON
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business September 30, 2014, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
|
|
|
|
|
|
|
Dollar amounts in
thousands |
|
ASSETS |
|
|
|
|
Cash and balances due from depository institutions: |
|
|
|
|
Noninterest-bearing balances and currency and coin |
|
|
5,811,000 |
|
Interest-bearing balances |
|
|
114,306,000 |
|
Securities: |
|
|
|
|
Held-to-maturity securities |
|
|
19,391,000 |
|
Available-for-sale securities |
|
|
92,289,000 |
|
Federal funds sold and securities purchased under agreements to resell: |
|
|
|
|
Federal funds sold in domestic offices |
|
|
17,000 |
|
Securities purchased under agreements to resell |
|
|
8,055,000 |
|
Loans and lease financing receivables: |
|
|
|
|
Loans and leases held for sale |
|
|
0 |
|
Loans and leases, net of unearned income |
|
|
34,349,000 |
|
LESS: Allowance for loan and lease losses |
|
|
176,000 |
|
Loans and leases, net of unearned income and allowance |
|
|
34,173,000 |
|
Trading assets |
|
|
7,806,000 |
|
Premises and fixed assets (including capitalized leases) |
|
|
998,000 |
|
Other real estate owned |
|
|
4,000 |
|
Investments in unconsolidated subsidiaries and associated companies |
|
|
575,000 |
|
Direct and indirect investments in real estate ventures |
|
|
0 |
|
Intangible assets: |
|
|
|
|
Goodwill |
|
|
6,447,000 |
|
Other intangible assets |
|
|
1,187,000 |
|
Other assets |
|
|
13,808,000 |
|
|
|
|
|
|
Total assets |
|
|
304,867,000 |
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES |
|
|
|
|
Deposits: |
|
|
|
|
In domestic offices |
|
|
140,468,000 |
|
Noninterest-bearing |
|
|
93,405,000 |
|
Interest-bearing |
|
|
47,063,000 |
|
In foreign offices, Edge and Agreement subsidiaries, and IBFs |
|
|
117,531,000 |
|
Noninterest-bearing |
|
|
7,533,000 |
|
Interest-bearing |
|
|
109,998,000 |
|
Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
Federal funds purchased in domestic offices |
|
|
1,165,000 |
|
Securities sold under agreements to repurchase |
|
|
1,166,000 |
|
Trading liabilities |
|
|
6,732,000 |
|
Other borrowed money: (includes mortgage indebtedness and obligations under capitalized leases) |
|
|
7,867,000 |
|
Not applicable |
|
|
|
|
Not applicable |
|
|
|
|
Subordinated notes and debentures |
|
|
1,065,000 |
|
Other liabilities |
|
|
7,327,000 |
|
|
|
|
|
|
Total liabilities |
|
|
283,321,000 |
|
|
|
|
|
|
EQUITY CAPITAL |
|
|
|
|
Perpetual preferred stock and related surplus |
|
|
0 |
|
Common stock |
|
|
1,135,000 |
|
Surplus (exclude all surplus related to preferred stock) |
|
|
10,035,000 |
|
Retained earnings |
|
|
10,642,000 |
|
Accumulated other comprehensive income |
|
|
-616,000 |
|
Other equity capital components |
|
|
0 |
|
Total bank equity capital |
|
|
21,196,000 |
|
Noncontrolling (minority) interests in consolidated subsidiaries |
|
|
350,000 |
|
Total equity capital |
|
|
21,546,000 |
|
|
|
|
|
|
Total liabilities and equity capital |
|
|
304,867,000 |
|
|
|
|
|
|
I, Thomas P. Gibbons, Chief Financial Officer of the above-named bank do hereby declare that
this Report of Condition is true and correct to the best of my knowledge and belief.
|
Thomas P. Gibbons, |
Chief Financial Officer |
We, the undersigned directors, attest to the correctness of this statement of resources and
liabilities. We 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 and is true and correct.
|
|
|
|
|
Gerald L. Hassell
Catherine A. Rein
Michael J. Kowalski |
|
|
|
Directors |
Teva Pharmaceutical Indu... (NYSE:TEVA)
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