As filed with the Securities and Exchange Commission on August 3, 2026
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM F-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Stellantis N.V. (Exact name of Registrant as specified in its charter) The Netherlands (State or other jurisdiction of incorporation or organization) Not Applicable (I.R.S. Employer Identification Number) Taurusavenue 1 2132 LS Hoofddorp, The Netherlands Telephone No.: +31 23 700 1511 (Address and telephone number of Registrant’s principal executive offices) | Stellantis Finance US Inc. (Exact name of Registrant as specified in its charter) Delaware (State or other jurisdiction of incorporation or organization) 61-1818372 (I.R.S. Employer Identification Number) 1000 Chrysler Drive, Auburn Hills Michigan 48326, U.S.A. Telephone No.: (248) 512-3986 (Address and telephone number of Registrant’s principal executive offices) | ||||
Stellantis Finance US Inc.
1000 Chrysler Drive, Auburn Hills
Michigan 48326, U.S.A.
Tel. No.: (248) 512-3986
(Name, address and telephone number of agent for service)
Please send copies of all communications to:
Oderisio de Vito Piscicelli
Sullivan & Cromwell LLP
1 New Fetter Lane
London EC4A 1AN, England
Tel. No.: 44-20-7959-8900
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement.
If only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. o
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. ý
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. o
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. o
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. ý
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. o
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933.
Emerging growth company o
If an emerging growth company that prepares its financial statements in accordance with U.S. GAAP, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards† provided pursuant to Section 7(a)(2)(B) of the Securities Act. o
† The term “new or revised financial accounting standard” refers to any update issued by the Financial Accounting Standards Board to its Accounting Standards Codification after April 5, 2012.
PROSPECTUS
STELLANTIS N.V.
Debt Securities
Common Shares
STELLANTIS FINANCE US INC.
Debt Securities
fully and unconditionally guaranteed by Stellantis N.V.
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Stellantis N.V. or Stellantis Finance US Inc. may use this prospectus to offer from time to time any of the securities identified above, or any combination thereof, in each case, in one or more series and in one or more offerings. This prospectus provides a general description of the securities and the general manner in which they may be offered.
Each time we sell the securities described in this prospectus, we will provide one or more supplements to this prospectus that will contain specific information about those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
We may offer and sell these securities to or through underwriters, dealers and/or agents, or directly to purchasers. The prospectus supplement for each offering of securities will describe in detail the plan of distribution for that offering, including the names of any underwriters and their compensation. The price to the public of those securities and the net proceeds we expect to receive from that sale will also be set forth in a prospectus supplement.
Stellantis N.V.’s common shares are admitted to trading on the New York Stock Exchange under the symbol “STLA”. The applicable prospectus supplement will indicate if the debt securities offered thereby will be listed on any securities exchange.
Investing in these securities involves certain risks. See “Risk Factors” beginning on page 5.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities, or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
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Prospectus dated August 3, 2026.
TABLE OF CONTENTS
| ABOUT THIS PROSPECTUS ...................................................................................................................................... | 1 | ||||
| SUMMARY OF RISK FACTORS ................................................................................................................................ | 2 | ||||
| RISK FACTORS ........................................................................................................................................................... | 5 | ||||
| ISSUER OF GUARANTEED SECURITIES ............................................................................................................... | 9 | ||||
| CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS ..................................... | 10 | ||||
| WHERE YOU CAN FIND MORE INFORMATION ABOUT US ............................................................................. | 12 | ||||
| ENFORCEABILITY OF CIVIL LIABILITIES ........................................................................................................... | 14 | ||||
| STELLANTIS N.V ....................................................................................................................................................... | 15 | ||||
| STELLANTIS FINANCE US INC ............................................................................................................................... | 15 | ||||
| USE OF PROCEEDS .................................................................................................................................................... | 16 | ||||
| CAPITALIZATION AND INDEBTEDNESS............................................................................................................... | 17 | ||||
| DESCRIPTION OF DEBT SECURITIES AND GUARANTEES ............................................................................... | 18 | ||||
| DESCRIPTION OF COMMON SHARES .................................................................................................................... | 41 | ||||
| CLEARANCE AND SETTLEMENT ........................................................................................................................... | 42 | ||||
| TAXATION .................................................................................................................................................................. | 45 | ||||
| PLAN OF DISTRIBUTION .......................................................................................................................................... | 62 | ||||
| VALIDITY OF SECURITIES ....................................................................................................................................... | 65 | ||||
| EXPERTS ...................................................................................................................................................................... | 66 | ||||
| EXPENSES .................................................................................................................................................................... | 67 | ||||
ABOUT THIS PROSPECTUS
In this prospectus, unless otherwise specified, the terms “we”, “our” and “us” refer to Stellantis N.V. and Stellantis Finance US Inc., or, if the context requires, the Group, “Group” refers to Stellantis N.V. together with its consolidated subsidiaries, “Stellantis” refers to Stellantis N.V. individually, or, if the context requires, Stellantis N.V. together with its consolidated subsidiaries, “Stellantis Finance” refers to Stellantis Finance US Inc., “Stellantis debt issuers” refers to Stellantis and Stellantis Finance (each a “Stellantis debt issuer”), the “guarantor” refers to Stellantis N.V., “FCA” refers to Fiat Chrysler Automobiles N.V. or Fiat Chrysler Automobiles N.V. together with its consolidated subsidiaries, or any one or more of them, as the context may require, and “PSA” refers to Peugeot S.A. or Peugeot S.A. together with its consolidated subsidiaries, or any one or more of them, as the context may require.
This prospectus is part of a registration statement that we filed with the SEC utilizing a shelf registration process. Under this shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we may offer. Each time we use this prospectus to offer securities, we will provide a prospectus supplement that will contain specific information about the terms of those securities and their offering. The prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any accompanying prospectus supplement, together with the additional information described under the heading “Where You Can Find More Information About Us”, carefully before you invest.
Each of the Stellantis debt issuers may be the issuer in an offering of debt securities. Debt securities offered by Stellantis will be issued under an indenture to be entered into among Stellantis, as issuer, and a trustee (the “Stellantis indenture”). Debt securities offered by Stellantis Finance will be guaranteed by Stellantis and will be issued under an indenture to be entered into among Stellantis Finance, as issuer, Stellantis, as guarantor and a trustee (the “Stellantis Finance indenture” and together with the Stellantis indenture, the “indentures”). See “Description of Debt Securities and Guarantees”.
Additionally, Stellantis will be the issuer in an offering of common shares. We refer to the debt securities issued by Stellantis or Stellantis Finance collectively as the debt securities. The debt securities and common shares that may be offered using this prospectus are referred to collectively as the securities.
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SUMMARY OF RISK FACTORS
Investing in our securities involves risk. You should consider carefully the risk factors incorporated by reference into this prospectus and the risk factors described in “Risk Factors” as well as the other information set out elsewhere in this prospectus (including any other documents incorporated by reference herein) before you decide to buy our securities. The following list summarizes some, but not all, of these risks. Please read the information in the section entitled “Risk Factors” for a more thorough description of these and other risks:
Risks Related to Stellantis and the Group
Risks Related to Our Business, Strategy and Operations
•If our vehicle shipment volumes continue to deteriorate, particularly shipments of pickup trucks and larger sport utility vehicles in the U.S. market, and overall shipments of vehicles in the European market, our results of operations and financial condition will suffer.
•Our business may be adversely affected by global financial markets, general economic conditions, enforcement of government incentive programs, geopolitical volatility and protectionist trade policies, as well as other macro developments over which we have no control.
•Our future performance depends on our ability to accurately predict demand, and effectively compete, in the market for electrified vehicles.
•Our future performance depends on our ability to offer innovative, attractive and relevant products.
•A significant malfunction, disruption or security breach compromising the operation of our information technology systems could damage our reputation, disrupt our business and adversely impact our ability to compete.
•A significant security breach compromising the electronic control systems contained in our vehicles could damage our reputation, disrupt our business and adversely impact our ability to compete.
•Our success largely depends on the ability of our management team to operate and manage effectively and our ability to attract and retain experienced management and employees.
•Labor laws and collective bargaining agreements with our labor unions could impact our ability to increase the efficiency of our operations, and we may be subject to work stoppages in the event we are unable to agree on collective bargaining agreement terms or have other disagreements.
•Our reliance on partnerships in order to offer consumers and dealers financing and leasing services in certain markets could adversely affect our vehicle sales.
•Our financial services companies subject us to the risks inherent in that business.
Risks Related to the Industry in which We Operate
•We face risks associated with increases in costs, disruptions of supply or shortages of raw materials, parts, components and systems used in our vehicles.
•The automotive industry is highly competitive and cyclical, and we may suffer from those factors more than some of our competitors.
•Vehicle retail sales depend heavily on affordable interest rates and availability of credit for vehicle financing and a substantial increase in interest rates could adversely affect our business.
•We are subject to risks related to natural and industrial disasters, terrorist attacks, pandemics and climatic or other catastrophic events.
•We are subject to risks associated with exchange rate fluctuations, interest rate changes and credit risk.
Risks Related to the Legal and Regulatory Environment in which We Operate
•Current and more stringent future or incremental laws, regulations and governmental policies, including those regarding increased fuel efficiency requirements and reduced greenhouse gas and tailpipe emissions, have a significant effect on how we do business and may result in additional liabilities and negatively affect our operations and results.
•We remain subject to ongoing diesel emissions investigations by several governmental agencies and to a number of related private lawsuits, which may lead to further claims, lawsuits and enforcement actions, and result in additional penalties, settlements or damage awards and may also adversely affect our reputation with consumers.
•Our business operations and reputation may be impacted by various types of claims, lawsuits, and other contingencies.
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•We face risks related to quality and vehicle safety issues, which could lead to product recalls and warranty obligations that may result in direct costs, and any resulting loss of vehicle sales could have material adverse effects on our business.
•We are subject to laws and regulations relating to corruption and bribery, as well as stakeholder expectations relating to human rights in the supply chain and a failure to meet these legislative and stakeholder standards could lead to enforcement actions, penalties or damage awards and may also adversely affect our reputation with consumers.
•We may not be able to adequately protect our intellectual property rights, which may harm our business.
•It may be difficult to enforce U.S. judgments against our Directors, Senior Management and independent auditors.
•As an employer with a large workforce, we face risks related to the health and safety of our employees, as well as reputational risk related to diversity and inclusion.
•Failure to maintain effective internal controls in accordance with Section 404 of the Sarbanes-Oxley Act of 2002 could have an adverse effect on our business and the value of our common shares.
Risks Related to Our Liquidity and Existing Indebtedness
•Limitations on our liquidity and access to funding, as well as our significant outstanding indebtedness, may restrict our financial and operating flexibility and our ability to execute our business strategies, obtain additional funding on competitive terms and improve our financial condition and results of operations.
Risks Related to Taxation
•The French tax authorities may revoke or disregard in whole or in part the rulings confirming the neutral tax treatment of the merger for former PSA and the transfer of tax losses carried forward by the legacy PSA French tax consolidated group.
•We operate so as to be treated exclusively as a resident of The Netherlands for tax purposes, but the tax authorities of other jurisdictions may treat us as also being a resident of another jurisdiction for tax purposes.
•We may not qualify for benefits under the tax treaties entered into between The Netherlands and other countries.
•The tax consequences of the loyalty voting structure are uncertain.
•There may be potential passive foreign investment company tax considerations for U.S. Shareholders.
•The IRS may not agree with the determination that Stellantis should not be treated as a domestic corporation for U.S. federal income tax purposes, and adverse tax consequences could result to us and our shareholders if the IRS were to successfully challenge such determination.
•If we fail to maintain a permanent establishment in France, we could experience adverse tax consequences.
•We and our subsidiaries are subject to tax laws and treaties of numerous jurisdictions. Future changes to such laws or treaties could adversely affect us and our subsidiaries and our shareholders and holders of special voting shares. In addition, the interpretation of these laws and treaties is subject to challenge by the relevant governmental authorities.
Risks Related to the Common Shares
•The loyalty voting structure may concentrate voting power in a small number of our shareholders and such concentration may increase over time.
•The loyalty voting structure may affect the liquidity of Stellantis’ common shares and reduce the share price.
•The loyalty voting structure may prevent or frustrate attempts by Stellantis’ shareholders to change its management and hinder efforts to acquire a controlling interest in Stellantis, and the market price of Stellantis’ common shares may be lower as a result.
•The market price of Stellantis’ shares may be volatile.
Risks Related to the Debt Securities and Guarantees
•Since Stellantis is a holding company and conducts most of its operations through subsidiaries, your right to receive payments on debt securities issued by Stellantis or on the guarantees is subordinated to the other liabilities of its subsidiaries.
•Stellantis Finance is a finance subsidiary that has no revenue-generating operations of its own and depends on cash received from other members of the Group to be able to make payments on the debt securities.
•Because the debt securities are unsecured, your right to receive payments may be adversely affected.
•The Stellantis debt issuers can incur significantly more debt in the future, and your rights as a holder of debt securities may be inferior to the rights of holders of debt securities issued under a different series pursuant to the indentures.
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•A ratings decline could adversely affect the value of the debt securities.
•Should a Stellantis debt issuer default on its debt securities, or should the guarantor default on the guarantees, your right to receive payments on such debt securities or guarantees may be adversely affected by applicable insolvency laws.
•We may not be able to repurchase the debt securities upon a change of control, which would result in a default under the debt securities.
•The provisions relating to change of control transactions will not necessarily afford you protection in the event of a change of control transaction, even if the transaction is highly leveraged.
•The debt securities lack a developed trading market, and such a market may never develop.
•The debt securities may be subject to redemption by the Stellantis debt issuers.
•An increase in interest rates could result in a decrease in the relative value of the fixed rate debt securities.
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RISK FACTORS
Investing in the securities offered using this prospectus involves risk. You should consider carefully the risks described below, together with the risks described in the documents incorporated by reference into this prospectus and any risk factors included in the prospectus supplement, before you decide to buy our securities. If any of these risks actually occur, our business, financial condition and results of operations could suffer, and the trading price and liquidity of the securities offered using this prospectus could decline, in which case you may lose all or part of your investment.
Risks Related to Stellantis and the Group
You should read the section entitled “Risk Factors” in Stellantis’s Annual Report on Form 20-F for the fiscal year ended December 31, 2025 (the “2025 Annual Report”), which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for information on risks relating to Stellantis and the Group.
Risks Related to the Common Shares
You should read “Risk Factors—Risks Related to the Ownership of Our Shares” in the 2025 Annual Report, which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for information on risks relating to Stellantis’s common shares.
The market price of Stellantis’ shares may be volatile.
The market price of Stellantis’ common shares may be volatile as a result of various factors, many of which are beyond our control. These factors include, but are not limited to, the following:
•market expectations for our financial performance;
•actual or anticipated fluctuations in our results of operations and financial condition;
•volatility in the market as a whole or investor perception of the auto industry or of our competitors;
•changes in financial estimates or investment recommendations by securities analysts; or
•the occurrence of any of the matters discussed in risk factors in the documents incorporated herein by reference.
Risks Related to the Debt Securities and Guarantees
Since Stellantis is a holding company and conducts most of its operations through subsidiaries, your right to receive payments on debt securities issued by Stellantis or on the guarantees is subordinated to the other liabilities of its subsidiaries.
Stellantis is a holding company and most of its operations are conducted through its subsidiaries. Stellantis’ ability to meet its financial obligations is dependent upon the availability of cash flows from its domestic and foreign subsidiaries and affiliated companies through dividends, intercompany advances and other payments. No member of the Group (other than the Stellantis debt issuers, or the guarantor, as the case may be) has any obligation, contingent or otherwise, to pay any amounts due under the debt securities or to make funds available to the Stellantis debt issuers or the guarantor to enable them to pay any amounts due under the debt securities or the guarantees. Moreover, Stellantis’ subsidiaries and affiliated companies are not required, and may not be able, to pay dividends to Stellantis, which could limit the amount of funds available to meet payment obligations under the securities it may offer. Claims of the creditors of Stellantis’ subsidiaries have priority as to the assets of such subsidiaries over the claims of Stellantis. Consequently, in the event of insolvency of Stellantis, the claims of holders of debt securities guaranteed or issued by Stellantis would be structurally subordinated to the prior claims of the creditors of subsidiaries of Stellantis.
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Moreover, some of Stellantis’ subsidiaries are subject to laws restricting the amount of dividend they may pay. For example, subsidiaries of Stellantis incorporated under the laws of England and Wales may be restricted by law in their ability to declare dividends due to failure to meet requirements tied to net asset levels or distributable profits.
Stellantis Finance is a finance subsidiary that has no revenue-generating operations of its own and depends on cash received from other members of the Group to be able to make payments on the debt securities.
Stellantis Finance is an indirect finance subsidiary of Stellantis with limited assets and limited ability to generate revenues. The ability of Stellantis Finance to make any payments on the debt securities will depend on the earnings, business and tax considerations, and legal and contractual restrictions on payments of dividends or other distributions by other members of the Group. If Stellantis Finance is not able to make payments on the debt securities, holders of the debt securities would have to rely on claims for payment under the guarantees, which are subject to the risks and limitations described herein. We cannot assure you that Stellantis Finance will receive sufficient dividends, distributions or loans from other members of the Group to service scheduled payments of interest, principal or other amounts due under the debt securities. Any of the situations described above could adversely affect the ability of Stellantis Finance to service its obligations in respect of the debt securities.
Because the debt securities are unsecured, your right to receive payments may be adversely affected.
The debt securities that we are offering will be unsecured. Unless otherwise specified in the applicable prospectus supplement, the debt securities are not subordinated to any of our other debt obligations and therefore they will rank equally with all our other unsecured and unsubordinated indebtedness. If Stellantis or Stellantis Finance defaults on its debt securities or Stellantis defaults on the guarantees, or in the event of bankruptcy, liquidation or reorganization, then, to the extent that Stellantis or Stellantis Finance have granted security over their assets, the assets that secure these debts will be used to satisfy the obligations under that secured debt before Stellantis or Stellantis Finance, as the case may be, could make payment on the debt securities or the guarantees. If there is not enough collateral to satisfy the obligations of the secured debt, then the remaining amounts on the secured debt would share equally with all unsubordinated unsecured indebtedness.
The Stellantis debt issuers can incur significantly more debt in the future, and your rights as a holder of debt securities may be inferior to the rights of holders of debt securities issued under a different series pursuant to the indentures.
There is no restriction on the amount or type of further securities or indebtedness that we may issue, incur or guarantee, as the case may be, that rank senior to, subordinate to, or pari passu with, the debt securities. Each Stellantis debt issuer may issue as many distinct series of debt securities under the applicable indenture (or other indentures entered into from time to time) as they wish. The issue or guaranteeing of any such further securities or indebtedness may reduce the amount recoverable by holders of the debt securities upon bankruptcy, liquidation or reorganization, and may limit our ability to meet obligations under the debt securities or guarantees.
Furthermore, the indentures do not restrict the Stellantis debt issuers from issuing debt securities that provide holders with rights superior to the rights already granted or that may be granted in the future to holders of another series under that indenture. You should read carefully the specific terms of any particular series of debt securities we may offer contained in the prospectus supplement relating to such debt securities.
A ratings decline could adversely affect the value of the debt securities.
One or more independent credit rating agencies may assign credit ratings to the debt securities. The ratings may not reflect the potential impact of all risks related to structure, market, additional factors discussed in this prospectus, and other factors that may affect the value of the debt securities. A credit rating is not a recommendation to buy, sell or hold securities and may be revised or withdrawn by the rating agency at any time. Purchasers of securities rely on the creditworthiness of Stellantis and no other person. Any of the rating agencies that rate the debt of a Stellantis debt issuer has the ability to lower the ratings currently assigned to that debt as a result of its views about the current or future business, financial condition or results of operations of the Group or other matters. Any ratings decline could adversely affect the value of the debt securities. Investment in the securities involves the risk that subsequent changes in actual or perceived creditworthiness of the Group may adversely affect the market value of the securities.
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Should a Stellantis debt issuer default on its debt securities, or should the guarantor default on the guarantees, your right to receive payments on such debt securities or guarantees may be adversely affected by applicable insolvency laws.
Stellantis is incorporated under the laws of The Netherlands, and Stellantis Finance is incorporated under the laws of Delaware. Accordingly, insolvency proceedings with respect to Stellantis are likely to proceed under, and be governed by, Dutch insolvency law. Under Dutch insolvency law, the procedural and substantive protections afforded to debtors and unsecured creditors against the claims of secured creditors are limited, and it will generally not be possible for Stellantis or other unsecured creditors to prevent or delay the secured creditors from enforcing their security to repay the debts due to them under the terms that such security was granted.
We may not be able to repurchase the debt securities upon a change of control, which would result in a default under the debt securities.
Upon the occurrence of specific kinds of change of control events, holders of debt securities will have the right to require the applicable Stellantis debt issuer to purchase all or a portion of their debt securities pursuant to the offer described below under “Description of the Debt Securities and Guarantees—Redemption and Repayment—Change of Control Put”, at a price in cash equal to 101% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of holders of record of such debt securities on the relevant record date to receive interest due on the relevant interest payment date. If we experience a Change of Control Event (as defined in “Description of the Debt Securities and Guarantees—Redemption and Repayment—Change of Control Put”), there can be no assurance that we would have sufficient financial resources available to satisfy our obligations to repurchase the debt securities. The terms of our other existing credit facilities and other financing arrangements may require repayment of amounts outstanding in the event of a change of control and limit our ability to fund the repurchase of debt securities in certain circumstances.
The source of funds for any purchase of debt securities will be our available cash or cash generated from our and our subsidiaries’ operations or other sources, including borrowings, sales of assets or sales of equity. We may not be able to repurchase the debt securities upon a Change of Control Event because we may not have sufficient financial resources to purchase all of the debt securities that are tendered upon a Change of Control Event and to repay our other indebtedness that will become due. We may require additional financing from third parties to fund any such purchases, and we cannot assure you that we would be able to obtain financing on satisfactory terms or at all. In order to avoid the obligations to repurchase the debt securities, we may have to avoid certain change in control transactions that would otherwise be beneficial to us. Our failure to purchase the debt securities as required by their terms would result in an event of default, which could have material adverse consequences for us and the holders of the debt securities and could lead to a cross-default under the terms of our existing and future indebtedness.
The provisions relating to change of control transactions will not necessarily afford you protection in the event of a change of control transaction, even if the transaction is highly leveraged.
The provisions in the indentures relating to change of control transactions will not necessarily afford you protection in the event of a change of control transaction that may adversely affect you, including a reorganization, restructuring, merger or other similar transaction involving us, even if the transaction is highly leveraged. These transactions may not involve a change in voting power or beneficial ownership or, even if they do, may not involve a change of the magnitude or on the terms required under the definition of Change of Control Event. A Change of Control Event will occur only if the rating of the debt securities is downgraded or withdrawn and the relevant Rating Agency publicly announces that this is the result, in whole or in part, of the change of control or if the debt securities are not rated by any Rating Agency at the relevant time and the debt securities are not subsequently rated within the time period set out in the indentures. Therefore, even if such events constitute a change of control, they may not constitute a Change of Control Event.
The debt securities lack a developed trading market, and such a market may never develop.
The Stellantis debt issuers may issue debt securities in different series with different terms in amounts that are to be determined. There can be no assurance that an active trading market will develop for any series of these debt securities even if we list the debt securities on a securities exchange.
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There can also be no assurance regarding the future development of a market for the debt securities or the ability of holders of the debt securities to sell their debt securities or the price at which such holders may be able to sell their debt securities. If such a market were to develop, the debt securities could trade at prices that may be higher or lower than the initial offering price and this may result in a return that is greater or less than the interest rate on the debt security, in each case depending on many factors, including, among other things, prevailing interest rates, our operating results and the market for similar securities.
Any underwriters, broker-dealers or agents that participate in the distribution of the debt securities may make a market in the debt securities as permitted by applicable laws and regulations but will have no obligation to do so, and any such market-making activities may be discontinued at any time. Therefore, there can be no assurance as to the liquidity of any trading market for the debt securities or that an active public market for the debt securities will develop. See “Plan of Distribution”.
The debt securities may be subject to redemption by the Stellantis debt issuers.
An optional redemption feature is likely to limit the market value of the debt securities. During any period when a Stellantis debt issuer may elect to redeem debt securities, the market value of those debt securities generally will not rise substantially above the price at which they can be redeemed. This also may be true prior to any redemption period.
The Stellantis debt issuers may be expected to redeem debt securities when their cost of borrowing is lower than the interest rate on the debt securities. At those times, an investor generally would not be able to reinvest the redemption proceeds at an effective interest rate as high as the interest rate on the debt securities being redeemed and may only be able to do so at a significantly lower rate. Potential investors should consider reinvestment risk in light of other investments available at that time.
Alternatively, debt securities may be issued with no maturity date and the applicable Stellantis debt issuer will be under no obligation to redeem such debt securities and the holders of such debt securities will have no right to call for their redemption (save as permitted pursuant to the relevant prospectus supplement).
An increase in interest rates could result in a decrease in the relative value of the fixed rate debt securities.
In general, as market interest rates rise, debt securities bearing interest at a fixed rate generally decline in value because the premium, if any, over market interest rates will decline. Consequently, if you purchase fixed rate debt securities and market interest rates increase, the market value of your fixed rate debt securities may decline. We cannot predict the future level of market interest rates. Investors should consider these matters when making their investment decision with respect to any fixed rate debt securities.
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ISSUER OF GUARANTEED SECURITIES
The debt securities Stellantis Finance may issue under this prospectus will be fully and unconditionally guaranteed by Stellantis as to payment of principal, premium (if any), interest and any other amounts due. For a brief description of the general terms of the debt securities and guarantees that we may offer, see below under “Description of Debt Securities and Guarantees” in this prospectus.
Under the terms of the guarantees, Stellantis will fully and unconditionally guarantee the payment of the principal of, premium, if any, and interest on the debt securities issued by Stellantis Finance, including additional amounts, as described below under “—Payment of Additional Amounts”, if any, and sinking fund payments, if any, which may be payable in respect of the debt securities issued by Stellantis Finance. Stellantis will guarantee the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise. The guarantees will be the full, direct, unconditional and unsecured general obligations of Stellantis. The debt securities and related guarantees may or may not be subordinated to any of our other debt obligations as indicated in the applicable prospectus supplement. If they are not subordinated, they will rank equally with all our other unsecured and unsubordinated indebtedness.
Stellantis Finance is a wholly owned indirect subsidiary of Stellantis. Stellantis Finance is a finance subsidiary which serves as financing vehicles for Stellantis and its principal source of income consists of payments on intra-group receivables. Stellantis is a holding company and as such its ability to meet its financial obligations is dependent upon the availability of cash flows from its domestic and foreign subsidiaries and affiliated companies through dividends, intercompany advances and other payments. Claims of the creditors of Stellantis’ subsidiaries have priority as to the assets of such subsidiaries over the claims of Stellantis. If Stellantis defaults on its guarantees, its ability to pay any debts existing at the time of the insolvency may be adversely affected by the insolvency laws of the jurisdiction of its organization. In addition, enforcement of each guarantee will be subject to certain generally available defenses under local law. For further discussion, please see “Risk Factors—Since Stellantis is a holding company and conducts most of its operations through subsidiaries, your right to receive payments on debt securities issued by Stellantis or on the guarantees is subordinated to the other liabilities of its subsidiaries” above.
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CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus, including documents that are filed with the U.S. Securities and Exchange Commission (“SEC”) and incorporated by reference herein, and the related prospectus supplements contain certain forward-looking statements that involve risks and uncertainties. These forward-looking statements are made pursuant to the “Safe Harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. All statements other than statements of historical fact, including statements regarding possible or assumed future performance, competitive strengths, costs, dividends, reserves, our growth, industry growth and other trends and projections and estimated company earnings are forward-looking statements. In some cases, we use words such as “may”, “will”, “expect”, “could”, “should”, “intend”, “estimate”, “anticipate”, “believe”, “remain”, “on track”, “design”, “target”, “objective”, “goal”, “forecast”, “projection”, “outlook”, “prospects”, “plan” and similar expressions to identify forward-looking statements.
These forward-looking statements are not guarantees of future performance. They reflect current views about future events, are based on management’s current expectations and assumptions and are, by their nature, subject to significant risks and uncertainties because they relate to events and depend on circumstances that will occur in the future. Although we believe that the expectations reflected in the forward-looking statements are reasonable, we cannot assure you that our future results, level of activity, performance or achievements will meet these expectations. You should not place undue reliance on forward-looking statements.
Our actual results could differ materially from those anticipated in the forward-looking statements for many reasons, including the risks described above in “Risk Factors”, elsewhere in this prospectus, in the section entitled “Risk Factors” and elsewhere in the 2025 Annual Report, which is incorporated by reference herein, and/or in the other documents we incorporate by reference herein. Factors that could cause actual results and developments to differ materially from those expressed or implied by forward-looking statements, include, without limitation:
•our ability to maintain vehicle shipment volumes;
•changes in the global financial markets, general economic environment and changes in demand for automotive products, which is subject to cyclicality;
•changes in trade policy, the imposition of global and regional tariffs or tariffs targeted to the automotive industry;
•our ability to accurately predict the market demand for electrified vehicles;
•our ability to offer innovative, attractive and relevant products;
•a significant malfunction, disruption or security breach compromising information technology systems or the electronic control systems contained in our vehicles;
•the level of competition in the automotive industry, which may increase due to consolidation and new entrants;
•our ability to attract and retain experienced management and employees;
•exchange rate fluctuations, interest rate changes, credit risk and other market risks;
•increases in costs, disruptions of supply or shortages of raw materials, parts, components and systems used in our vehicles;
•changes in local economic and political conditions;
•the enactment of tax reforms or other changes in laws and regulations;
•the level of governmental economic incentives available to support the adoption of battery electric vehicles;
•the impact of increasingly stringent regulations regarding fuel efficiency and greenhouse gas and tailpipe emissions;
•various types of claims, lawsuits, governmental investigations and other contingencies, including product liability and warranty claims and environmental claims, investigations and lawsuits;
•material operating expenditures in relation to compliance with environmental, health and safety regulations;
•exposure to shortfalls in the funding of our defined benefit pension plans;
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•our ability to provide or arrange for access to adequate financing for dealers and retail customers;
•risks related to the operation of financial services companies;
•our ability to access funding to execute our business plan;
•our ability to realize anticipated benefits from joint venture arrangements;
•disruptions arising from political, social and economic instability;
•risks associated with our relationships with employees, dealers and suppliers;
•our ability to maintain effective internal controls over financial reporting;
•developments in labor and industrial relations and developments in applicable labor laws;
•earthquakes or other disasters; and
•other factors discussed elsewhere in this prospectus, in the 2025 Annual Report or in the other documents we incorporate by reference herein.
Any forward-looking statement speaks only as of the date on which such statement is made, and, except as required by applicable law, we undertake no obligation to update such statements, whether to make them conform to actual results or changes in our expectations or otherwise. Additional information, including information regarding factors that may affect our business, is contained in the 2025 Annual Report filed with the SEC, which can be found on Stellantis’ website at www.stellantis.com and in the other documents we file with the SEC. See “Where You Can Find More Information About Us” below.
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WHERE YOU CAN FIND MORE INFORMATION ABOUT US
Stellantis files annual reports on Form 20-F with, and furnishes other reports and information to, the SEC. The SEC maintains an Internet site at http://www.sec.gov, from which interested persons can electronically access Stellantis’s SEC filings. These filings are also available to the public on, or accessible through, our website at www.stellantis.com. Further, Stellantis’ common shares are listed on the New York Stock Exchange. You can consult reports and other information about Stellantis that it has filed pursuant to the rules of the New York Stock Exchange at such exchange.
As a foreign private issuer, we are exempt from some of the reporting requirements of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including proxy solicitation rules and the rules regarding the furnishing of quarterly reports to the SEC, which are required to be furnished only if required or otherwise provided in our home country domicile.
We have filed with the SEC a registration statement on Form F-3 relating to the securities covered by this prospectus. This prospectus is a part of the registration statement and does not contain all the information in the registration statement. Whenever a reference is made in this prospectus to a contract or other document of ours, the reference is only a summary and you should refer to the exhibits that are a part of the registration statement for a copy of the contract or other document.
The SEC allows us to incorporate by reference the information we file with them. This means that we can disclose important information to you by referring to documents. The information that we incorporate by reference is an important part of this prospectus. We incorporate by reference the following documents and any future filings we make with the SEC under Sections 13(a), 13(c) or 15(d) of the Exchange Act, until we complete the offerings using this prospectus:
•the 2025 Annual Report, filed with the SEC on February 26, 2026 (except for the discussion comparing 2024 results to 2023 results incorporated therein);
•the registration statement on Form 8-A containing a description of our common shares, filed on October 1, 2014, and any amendment or report filed for the purpose of updating such description (including the description of our common shares filed as Exhibit 2.1 to the 2025 Annual Report);
•our report on Form 6-K dated July 30, 2026 regarding our interim results as of and for the three and six months ended June 30, 2026 (except for the information contained under the heading "Guidance and Outlook" on page 53 of Exhibit 99.1 thereto); and
•our reports on Form 6-K furnished to the SEC after the date of this prospectus, only to the extent that the forms expressly state that we deem such reports to be filed and incorporate them by reference in this prospectus.
Information that we file with the SEC will automatically update and supersede information in documents filed with the SEC at earlier dates. All information appearing in this prospectus is qualified in its entirety by the information and financial statements, including the notes, contained in the documents that we incorporate by reference in this prospectus.
You may request a copy of filings incorporated by reference in this prospectus, at no cost, by writing or telephoning Stellantis at the following address:
Stellantis N.V.
Taurusavenue
2132 LS Hoofddorp, The Netherlands
Tel. No.: +31 23 700 1511
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Except for the documents specifically incorporated by reference into this prospectus, the information contained on, or that can be accessed through, any websites is not part of, and is not incorporated into, this prospectus or the accompanying prospectus supplement.
No person has been authorized to give any information or to make any representations other than those contained in this prospectus. We take no responsibility for, and can provide no assurance as to the reliability of, any other information that others may give you. This prospectus and any accompanying supplement to this prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate, nor do this prospectus and any prospectus supplement constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. Neither the delivery of this prospectus or any prospectus supplement nor any sale made hereunder or thereunder shall, under any circumstances, create any implication that there has been no change in our affairs since the date hereof or thereof or that the information contained herein or therein is correct as of any time subsequent to the date of such information.
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ENFORCEABILITY OF CIVIL LIABILITIES
Stellantis is a public limited liability company (naamloze vennootschap) incorporated under the laws of The Netherlands. Many members of the board of directors and senior management of Stellantis, and certain experts named in this prospectus, are residents of countries other than the United States. In addition, although we have substantial assets in the United States, a large portion of our assets and the assets of our directors and senior management is located outside the United States. As a result, it may not be possible for you to effect service of process within the United States upon these persons or upon Stellantis, or it may be difficult to enforce judgments obtained in U.S. courts based on the civil liability provisions of the U.S. securities laws against Stellantis. [We understand there is doubt as to the enforceability in The Netherlands of original actions or in actions for enforcement of judgments of U.S. courts of civil liabilities predicated solely upon the federal securities laws of the United States. As there is no treaty between the United States and The Netherlands providing for the reciprocal recognition and enforcement of judgments (other than arbitration awards in civil and commercial matters), a judgment rendered by a court in the United States will not be recognized and enforced by the Dutch courts. However, if a person has obtained a final and conclusive judgment for the payment of money based on civil liability rendered by a U.S. court which is enforceable in the United States (the “foreign judgment”) and files his claim with the competent Dutch court, the Dutch court will generally give binding effect to the foreign judgment insofar as it finds that (a) the jurisdiction of the U.S. court has been based on grounds which are internationally acceptable, (b) that proper legal procedures have been observed, (c) the foreign judgment does not contravene Dutch public policy and (d) the judgment by the U.S. court is not incompatible with a judgment rendered between the same parties by a Dutch court, or with an earlier judgment rendered between the same parties by a non-Dutch court in a dispute that concerns the same subject and is based on the same cause, provided that the earlier judgment qualifies for recognition in The Netherlands.
Subject to the foregoing and provided that service of process occurs in accordance with applicable treaties, investors may be able to enforce in The Netherlands, judgments in civil and commercial matters obtained from U.S. federal or state courts. However, no assurance can be given that such judgments will be enforceable. In addition, 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. federal securities laws.
Enforcement of any foreign judgment in The Netherlands will be subject to the rules of Dutch civil procedure. Judgments may be rendered in a foreign currency but enforcement is executed in EUR at the applicable rate of exchange. Under certain circumstances, a Dutch court has the power to stay proceedings (aanhouden) or to declare that it has no jurisdiction, if concurrent proceedings are being brought elsewhere.
A Dutch court may reduce the amount of damages granted by a U.S. court and recognize damages only to the extent that they are necessary to compensate actual losses and damages.
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STELLANTIS N.V.
Stellantis N.V. was incorporated as a public limited liability company (naamloze vennootschap) under the laws of The Netherlands in April 2014 under the name Fiat Chrysler Automobiles N.V. In its current configuration, Stellantis is the result of the merger of FCA and PSA. The principal office of Stellantis is located at Taurusavenue 1, 2132 LS Hoofddorp, The Netherlands, and its official seat (statutaire zetel) is in Amsterdam, The Netherlands. Stellantis is registered with the Dutch trade register under number 60372958. Its telephone number is +31 23 700 1511.
Stellantis is a global automaker engaged in designing, engineering, manufacturing, distributing and selling vehicles and components worldwide. Stellantis designs, engineers, manufactures, distributes and sells vehicles across five portfolios: (i) luxury vehicles under the Maserati brand; (ii) premium vehicles covered by Alfa Romeo, DS and Lancia brands; (iii) global sport utility vehicles under the Jeep brand; (iv) American brands covering Dodge, Ram and Chrysler vehicles and (v) European brands covering Abarth, Citroën, FIAT, Opel, Peugeot and Vauxhall vehicles. Stellantis also provides retail and dealer financing, leasing and rental services available through its subsidiaries, joint ventures and commercial arrangements with third party financial institutions. Additionally, Stellantis supports its vehicle shipments with the sale of related service parts and accessories, as well as service contracts, worldwide. Stellantis also engages in several other related activities, such as pre-owned car businesses, mobility brands, and independent after-market parts and service businesses.
You can find a more detailed description of our business in the 2025 Annual Report, which is incorporated by reference in this prospectus.
STELLANTIS FINANCE US INC.
Stellantis Finance is a wholly owned indirect subsidiary of Stellantis, and was incorporated under the laws of Delaware on March 6, 2017. The principal office of Stellantis Finance is located at 1000 Chrysler Drive, Auburn Hills, Michigan 48326, U.S.A and its telephone number is (248)-512-3986. Stellantis Finance is a finance subsidiary which serves as a financing vehicle for Stellantis. Stellantis Finance has no independent operations and conducts no business, except in connection with borrowings and the advance of proceeds from such borrowings to companies in the Group.
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USE OF PROCEEDS
Unless otherwise indicated in an accompanying prospectus supplement, the net proceeds from the sale of securities will be used for general corporate purposes.
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CAPITALIZATION AND INDEBTEDNESS
The following table sets forth our consolidated cash and cash equivalents, capitalization and indebtedness as of June 30, 2026. This information should be read in conjunction with the interim and condensed consolidated financial statements of Stellantis (and the accompanying notes) as of and for the three and six months ended June 30, 2026 incorporated by reference into this prospectus.
| As of June 30, 2026 | |||||
| EUR (in millions) | |||||
Cash and cash equivalents(1) | 33,697 | ||||
Current debt(2) | 15,859 | ||||
| Notes | 2,484 | ||||
| Borrowings from banks | 1,738 | ||||
| Asset-backed financing | 8,737 | ||||
| Lease liabilities | 889 | ||||
| Other debt | 2,011 | ||||
Non-current debt(3) | 36,203 | ||||
| Notes | 21,630 | ||||
| Borrowings from banks | 650 | ||||
Asset-backed financing(1)(4) | 10,383 | ||||
| Lease liabilities | 1,704 | ||||
| Other debt | 1,836 | ||||
| Total debt | 52,062 | ||||
| Non-controlling interests | 458 | ||||
| Equity attributable to owners of the parent | 61,279 | ||||
| Total equity | 61,737 | ||||
Total capitalization(5) | 113,799 | ||||
(1) In July 2026, Stellantis Financial Services U.S., through Stellantis Financial Underwritten Enhanced Trust 2026-B, issued six classes of ABS Term Notes totaling €0.9 billion ($1.0 billion) in aggregate principal amount. One class of notes bears interest at fixed and floating rates with the remainder bearing interest at fixed rate. The ABS Term Notes are secured by a pool of leases.
(2) Of the €15,859 million Current finance debt: €1,466 million is issued by Stellantis, €1,267 million is guaranteed by Stellantis and €13,126 million is not guaranteed by Stellantis.
(3) Of the €36,203 million Non-current finance debt: €13,077 million is issued by Stellantis, €4,748 million is guaranteed by Stellantis and €18,378 million is not guaranteed by Stellantis.
(4) In July 2026, SFS Funding, LLC, Stellantis' primary syndicated secured warehouse facility, was upsized from $8 billion to $12 billion. No material changes were made to the facility's terms and conditions, and the scheduled termination date was extended to July 24, 2028.
(5) Total capitalization represents the sum of Total debt and Total equity.
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DESCRIPTION OF DEBT SECURITIES AND GUARANTEES
This prospectus relates to, among other securities, debt securities issued by Stellantis or Stellantis Finance. As required by U.S. federal law for all bonds and notes of companies that are publicly offered, the debt securities are governed by documents called indentures.
The indenture relating to debt securities issued by Stellantis is a contract that will be entered into among Stellantis, as issuer, and The Bank of New York Mellon, as trustee. This indenture, as it may be amended and supplemented, is referred to as the “Stellantis indenture”.
The indenture relating to debt securities issued by Stellantis Finance is a contract that will be entered into among Stellantis Finance, as issuer, Stellantis, as guarantor, and The Bank of New York Mellon, as trustee. This indenture, as it may be amended and supplemented, is referred to as the “Stellantis Finance indenture”.
The trustee has two main roles. First, it can enforce your rights against us if we default. There are some limitations on the extent to which the trustee acts on your behalf, described under “—Default and Related Matters—Events of Default—Remedies If an Event of Default Occurs” below. Second, the trustee performs administrative duties for us, such as sending you interest payments, transferring your debt securities to a new buyer if you sell and sending you notices.
As you read this section, please remember that the specific terms of a series of debt securities as described in the accompanying prospectus supplement will supplement and, if applicable, may modify or replace the general terms described in this section. If there are any differences between the applicable prospectus supplement and this prospectus, the applicable prospectus supplement will control. Accordingly, the statements we make in this section may not apply to your debt security.
This section summarizes the material provisions of the indentures, the debt securities and the guarantees. However, because it is a summary, it does not describe every aspect of the indentures, the debt securities and the guarantees. This summary is subject to and qualified in its entirety by reference to the applicable indenture, each of which is incorporated herein by reference. The indentures and associated documents contain the full legal text of the matters described in this section. The indentures, the debt securities and the guarantees are governed by New York law. A copy of a form of the Stellantis indenture and a form of the Stellantis Finance indenture are filed with the SEC as exhibits to the registration statement on Form F-3 of which this prospectus is a part. See “Where You Can Find More Information About Us” for information on how to obtain copies of these documents.
This summary also is subject to and qualified by reference to the description of the particular terms of your series described in the prospectus supplement. This section summarizes all material terms of the debt securities that are common to all series, unless otherwise indicated in the prospectus supplement relating to a particular series.
Each Stellantis debt issuer may issue as many distinct series of debt securities under the applicable indenture as it wishes. Each Stellantis debt issuer may also from time to time without the consent of the holders of the debt securities issued under the applicable indenture create and issue further debt securities having the same terms and conditions as debt securities of an already issued series under such indenture so that the further issue is consolidated and forms a single series with that series.
Amounts That We May Issue
The indentures do not limit the aggregate amount of debt securities that we may issue or the number of series or the aggregate amount of any particular series. Each Stellantis debt issuer may issue debt securities and other securities at any time without your consent and without notifying you.
Principal Amount, Stated Maturity and Maturity
The principal amount of a series of debt securities means the principal amount payable at its stated maturity, unless that amount is not determinable, in which case the principal amount of a debt security is its face amount. Any debt securities owned by us or any of our affiliates are not deemed to be outstanding.
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The term “stated maturity” with respect to any debt security means the day on which the principal amount of your debt securities is scheduled to become due. The principal may become due sooner, by reason of redemption or acceleration after a default or otherwise in accordance with the terms of your debt securities. The day on which the principal actually becomes due, whether at the stated maturity or earlier, is called the “maturity” of the principal.
We also use the terms “stated maturity” and “maturity” to refer to the days when other payments become due. For example, we may refer to a regular interest payment date when an installment of interest is scheduled to become due as the “stated maturity” of that installment. When we refer to the “stated maturity” or the “maturity” of a debt security without specifying a particular payment, we mean the stated maturity or maturity, as the case may be, of the principal.
Form of Debt Securities
We will issue debt securities in global (book-entry) form only, unless specified otherwise in the applicable prospectus supplement. Debt securities in book-entry form will be represented by a global security registered in the name of a depositary, which will be the holder of all the debt securities represented by the global security. Those who own beneficial interests in a global debt security will do so through participants in the depositary’s securities clearance system, and the rights of these indirect owners will be governed solely by the applicable procedures of the depositary and its participants. We generally will not recognize investors who hold securities in accounts at banks or brokers (i.e., in street name) as legal holders of securities. When we refer to the holders of securities, we mean only the actual legal and (if applicable) record holders of those securities. In the remainder of this description, “you” means direct holders and not street name or other indirect holders of securities.
In a few special situations described below, the global security will terminate and interests in it will be exchanged for physical certificates representing securities. These special situations are:
•When the depositary (i) notifies the applicable Stellantis debt issuer that it is unwilling, unable or no longer qualified to continue as depositary or (ii) has ceased to be a clearing agency registered under the Exchange Act, or
•When an event of default on the securities has occurred and has not been cured. Defaults on debt securities are discussed below under “—Default and Related Matters—Events of Default”.
The prospectus supplement may also list additional situations for terminating a global security that would apply only to the particular series of securities covered by the prospectus supplement. When a global security terminates, the depositary, and not we or the trustee, is responsible for deciding the names of the institutions that will be the initial direct holders.
In addition, we will generally issue each debt security in registered form, without coupons, unless specified otherwise in the applicable prospectus supplement.
Types of Debt Securities
We may issue fixed rate debt securities, floating rate debt securities or indexed debt securities. A debt security may have elements of each of these three types of debt securities. For example, a debt security may bear interest at a fixed rate for some periods and at a variable rate in others. Similarly, a debt security may provide for a payment of principal at maturity linked to an index and also bear interest at a fixed or variable rate.
Fixed Rate Debt Securities
A debt security of this type will bear interest at a fixed rate described in the applicable prospectus supplement from its original issue date until the principal is paid or made available for payment.
How Interest is Calculated. Interest on fixed rate debt securities will be paid on the basis of twelve 30-day months assuming a 360-day year, unless otherwise specified in the applicable prospectus supplement.
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How Interest Accrues. Interest on fixed rate debt securities will accrue from and including the most recent interest payment date to which interest has been paid or duly provided for, or, if no interest has been paid or duly provided for, from and including the issue date or any other date specified in the prospectus supplement on which interest begins to accrue. Interest will accrue to but excluding the next interest payment date, or, if earlier, the date on which the principal has been paid or duly made available for payment, except as described below under "— If a Payment Date Is Not a Business Day."
When Interest Is Paid. Payments of interest on fixed rate debt securities will be made on the interest payment dates specified in the applicable prospectus supplement.
Amount of Interest Payable. Interest payments for fixed rate debt securities will include accrued interest from and including the date of issue or from and including the last date in respect of which interest has been paid, as the case may be, to but excluding the relevant interest payment date or date of maturity or earlier redemption or repayment, as the case may be.
If a Payment Date Is Not a Business Day. If any scheduled interest payment date is not a business day, we will pay interest on the next business day, but interest on that payment will not accrue during the period from and after the scheduled interest payment date. If the scheduled maturity date or date of redemption or repayment is not a business day, we will pay interest and principal and premium, if any, on the next succeeding business day, but interest on that payment will not accrue during the period from and after the scheduled maturity date or date of redemption or repayment.
Amortizing Debt Securities. A fixed rate debt security may pay a level amount in respect of both interest and principal amortized over the life of the debt security. Payments of principal and interest on amortizing debt securities will be made on the interest payment dates specified in the applicable prospectus supplement, and at maturity or upon any earlier redemption or repayment. Payments on amortizing debt securities will be applied first to interest due and payable and then to the reduction of the unpaid principal amount. We will provide to the original purchaser, and will furnish to subsequent holders upon request to us, a table setting forth repayment information for each amortizing debt security.
Floating Rate Debt Securities
Interest Rate Formulas. A series of debt securities of this type will bear interest at rates that are determined by reference to an interest rate formula. In some cases, the rates may also be adjusted by adding or subtracting a spread or multiplying by a spread multiplier and may be subject to a minimum rate or a maximum rate. If your debt securities are floating rate debt securities, the formula and any adjustments that apply to the interest rate will be specified in your prospectus supplement.
How Interest Accrues. Each series of floating rate debt securities will bear interest from its original issue date or from the most recent date to which interest on the debt security has been paid or made available for payment. Interest will accrue on the principal of a series of floating rate debt securities at the yearly rate determined according to the interest rate formula stated in the applicable prospectus supplement, until the principal is paid or made available for payment. We will pay interest on each interest payment date and at maturity as described in “Additional Mechanics—Payment and Paying Agents” below.
Calculation of Interest. Calculations relating to a series of floating rate debt securities will be made by the calculation agent, an institution that we appoint as our agent for this purpose. The prospectus supplement for a particular series of floating rate debt securities will name the institution that we have appointed to act as the calculation agent for that particular series as of its original issue date. We may appoint a different institution to serve as calculation agent from time to time after the original issue date of the debt security without your consent and without notifying you of the change. Absent manifest error, all determinations of the calculation agent will be final and binding on you and us, without any liability on the part of the calculation agent.
For a series of floating rate Debt Securities, the calculation agent will determine, on the corresponding interest calculation or determination date, as described in the applicable prospectus supplement, the interest rate that takes effect on each interest reset date. In addition, the calculation agent will calculate the amount of interest that has accrued during each interest period—i.e., the period from and including the original issue date, or the last date to which interest has been paid or made available for payment, to but excluding the payment date. For each interest period, the calculation
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agent will calculate the amount of accrued interest by multiplying the face or other specified amount of the floating rate debt security by an accrued interest factor for the interest period. This factor will equal the sum of the interest factors calculated for each day during the interest period. The interest factor for each day will be expressed as a decimal and will be calculated by dividing the interest rate, also expressed as a decimal, applicable to that day by 360, by 365 or by the actual number of days in the year, as specified in the applicable prospectus supplement.
Upon the request of the holder of any floating rate debt security, the calculation agent will provide for that debt security the interest rate then in effect—and, if determined, the interest rate that will become effective on the next interest reset date. The calculation agent’s determination of any interest rate, and its calculation of the amount of interest for any interest period, will be final and binding in the absence of manifest error.
Unless otherwise specified in the applicable prospectus supplement and supplemental indenture, all percentages resulting from any calculation relating to a series of floating rate debt securities will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point, e.g., 9.876541 percent (or 0.09876541) being rounded down to 9.87654 percent (or 0.0987654) and 9.876545 percent (or 0.09876545) being rounded up to 9.87655 percent (or 0.0987655). All amounts used in or resulting from any calculation relating to a series of floating rate debt securities will be rounded upward or downward, as appropriate, to the nearest cent, in the case of U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.
In determining the base rate that applies to a particular series of floating rate debt securities during a particular interest period, the calculation agent may obtain rate quotes from various banks or dealers active in the relevant market, as described in the applicable prospectus supplement. Those reference banks and dealers may include the calculation agent itself and its affiliates, as well as any underwriter, dealer or agent participating in the distribution of the relevant floating rate debt securities and its affiliates.
Original Issue Discount Debt Securities
A debt security may be an original issue discount debt security. A series of debt securities of this type is issued at a price lower than its principal amount and provides that, upon redemption or acceleration of its maturity, an amount less than its principal amount will be payable. A debt security issued at a discount to its principal may, for U.S. federal income tax purposes, be considered an original issue discount debt security, regardless of the amount payable upon redemption or acceleration of maturity. See “Taxation—United States Taxation of Debt Securities—United States Holders—Original Issue Discount” for a brief description of the U.S. federal income tax consequences of owning an original issue discount debt security.
Information in the Prospectus Supplement
The specific financial, legal and other terms particular to a series of debt securities will be described in the prospectus supplement and the pricing agreement relating to the series. Those terms may vary from the terms described here. Accordingly, this summary also is subject to and qualified by reference to the description of the terms of the series of debt securities described in the prospectus supplement.
The prospectus supplement relating to a series of debt securities will, to the extent applicable, describe the following terms of the series:
•which of the Stellantis debt issuers is the issuer of the debt securities;
•the title of the series of debt securities;
•the issue price;
•the person to whom any interest on a security of the series will be payable if other than the person in whose name the security is registered;
•the principal amount of the series of debt securities;
•any limit on the aggregate principal amount of the series of debt securities and the ability to issue additional securities of the same series;
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•any stock exchange on which we will list the series of debt securities;
•the date or dates on which we will pay the principal of the series of debt securities;
•the ranking of the debt securities;
•if the debt securities are subordinated debt securities, the subordination provisions and the applicable definition of “senior indebtedness”;
•whether the series of debt securities are fixed rate debt securities, floating rate debt securities or indexed debt securities;
•the interest rate, if any, the date from which interest will accrue, interest payment dates and record dates for interest payments, the method or methods by which such rate may be determined, whether payment of interest will be contingent in any respect and/or the interest rate reset, and the method by which any of the foregoing will be determined;
•our right, if any, to defer payment of interest and the maximum length of the deferral period;
•the place where any amounts due will be payable and where this series of debt securities can be registered, transferred, exchanged or converted as well as the place where any notices or demands for this series of debt securities may be served;
•any mandatory or optional sinking funds or analogous provisions or provisions for redemption at the option of the holder that are not described in this prospectus;
•the period within which and the price or prices at which the series of debt securities may, in accordance with any optional or mandatory redemption provisions that are not described in this prospectus, be redeemed by us and the other detailed terms and provisions of those optional or mandatory redemption provisions, if any;
•the denominations in which the series of debt securities will be issuable if in other than denominations of $1,000 and any integral multiple of $1,000;
•the currency of payment of principal, premium, if any, and interest on the series of debt securities if other than the currency of the United States of America and the manner of determining the equivalent amount in the currency of the United States of America;
•if any payment on the debt securities of that series will be made, at our option or your option, in any currency other than in the currency in which the debt securities state that they will be payable, the terms and conditions regarding how that election shall be made;
•if less than the entire principal amount is payable upon a declaration of acceleration of the maturity, that portion of the principal which is payable;
•the applicability of the provisions described later under “—Defeasance and Discharge”;
•if the series of debt securities will be issuable in whole or part in the form of a global security, the depositary or its nominee with respect to the series of debt securities, and any special circumstances under which the global security may be registered for transfer or exchange in the name of a person other than the depositary or its nominee;
•whether additional amounts will be payable as described later under “—Payment of Additional Amounts” and, if applicable, a related right to an optional tax redemption for such a series;
•the forms of the debt securities of the series and the guarantees endorsed on them;
•any changes in the covenants and the events of default described later under “Default and Related Matters—Events of Default”;
•any special U.S. federal income tax considerations relating to the series of debt securities;
•the names and duties of any co-trustees, depositaries, authenticating agents, paying agents, transfer agents or registrars for the series of debt securities, as applicable;
•any additional covenants to which we will be subject with respect to the debt securities of any series; and
•any other special features of the series of debt securities.
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Guarantees
Stellantis will fully, unconditionally and irrevocably guarantee the due and punctual payment of the principal of, premium, if any, and interest on the debt securities issued by Stellantis Finance, including additional amounts, as described under “—Payment of Additional Amounts”, if any, sinking fund payments, if any, and all other obligations which may be payable pursuant to the Stellantis Finance indenture and the debt securities issued by Stellantis Finance. Stellantis will guarantee the payment of such amounts when such amounts become due and payable, whether at the stated maturity of the debt securities, by declaration of acceleration, call for redemption or otherwise.
The guarantees will be the full, direct, unconditional and unsecured general obligations of Stellantis. Unless otherwise specified in the prospectus supplement, the obligations of Stellantis under the guarantees will constitute unsubordinated obligations of Stellantis and will:
•rank senior in right of payment to any future subordinated indebtedness and to any of its existing indebtedness which is by its terms subordinated in right of payment to the debt securities;
•rank pari passu in right of payment with respect to all of its existing and future unsecured (subject to the negative pledge) and unsubordinated indebtedness.
Redemption and Repayment
General
Unless otherwise indicated in the applicable prospectus supplement, a series of debt securities will not be entitled to the benefit of any sinking fund. This means we will not deposit money on a regular basis into any separate custodial account to repay a series of debt securities. In addition, we will not be entitled to redeem a series of debt securities before their stated maturity, other than as described below under “—Optional Tax Redemption”, unless the applicable prospectus supplement specifies a redemption commencement date.
Notice of any redemption will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of debt securities to be redeemed except that redemption notices may be given more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the debt securities (as described under “—Defeasance and Discharge”).
You will not be entitled to require us to buy your debt securities from you before their stated maturity, other than as described below under “—Change of Control Put” unless the prospectus supplement specifies one or more repayment dates.
Optional Tax Redemption
We may have the option to redeem the debt securities if, as a result of any change in or amendment to, or changes in the official application or interpretation of, any laws or regulations or rulings, or changes in the official application or interpretation of, or any execution of or amendment to, any treaties, the applicable Stellantis debt issuer or the guarantor (or any paying agent or other person on behalf of the applicable Stellantis debt issuer or guarantor) would be required to pay additional amounts as described below under “—Payment of Additional Amounts”.
This applies only in the case of changes, executions or amendments that become effective on or after the date specified in the prospectus supplement for the applicable series of debt securities and in the jurisdiction where such Stellantis debt issuer or guarantor is incorporated, organized or tax resident. If the applicable Stellantis debt issuer or guarantor is succeeded by another entity, the applicable jurisdiction will be the jurisdiction in which such successor entity is incorporated, organized or tax resident, and the applicable date will be the date the entity became a successor.
The applicable Stellantis debt issuer would not have the option to redeem in this case if it could have avoided the obligation to pay additional amounts by using reasonable measures available to it.
Change of Control Put
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If a Change of Control Event (as defined below) occurs with respect to a series of debt securities, the holders of such series of debt securities will have the right (unless the applicable Stellantis debt issuer has previously or concurrently given a notice of redemption with respect to all the then outstanding debt securities of such series pursuant to the terms of the applicable indenture) to require the applicable Stellantis debt issuer to purchase all or a portion of such debt securities pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of the holder(s) of record of such debt securities on the relevant record date to receive interest due on the relevant interest payment date.
In connection with any Change of Control Event (but not later than 30 days following any Change of Control Event), the applicable Stellantis debt issuer will notify the trustee in writing of such Change of Control Offer, and give notice to the holders of the relevant debt securities in accordance with the terms of the applicable indenture to repurchase Notes on the payment date specified in the notice (the “Change of Control Payment Date”), which date will be no earlier than 30 days and no later than 60 days from the date such notice is given to holders of the relevant debt securities.
The applicable Stellantis debt issuer will comply with the requirements of Section 14(e) of the Exchange Act and any other securities laws and regulations thereunder to the extent such laws or regulations are applicable in connection with the repurchase of debt securities pursuant to a Change of Control Offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the applicable indenture, the applicable Stellantis debt issuer will comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations described in the applicable indenture by virtue thereof.
On the Change of Control Payment Date, the applicable Stellantis debt issuer will, to the extent permitted by law:
1. accept for payment all debt securities of a series or portions thereof properly tendered pursuant to the Change of Control Offer;
2. deposit with the paying agent an amount equal to the aggregate Change of Control Payment in respect of all debt securities of such series or portions thereof so tendered; and
3. deliver, or cause to be delivered, to the trustee for cancellation the debt securities so accepted together with an officer’s certificate to the trustee stating that such debt securities or portions thereof have been tendered to and purchased by such Stellantis debt issuer.
The Stellantis debt issuers will not be required to make a Change of Control Offer upon a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth herein applicable to a Change of Control Offer made by a Stellantis debt issuer and purchases all debt securities properly tendered and not withdrawn under the Change of Control Offer.
Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time a Change of Control Offer is made (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of Stellantis N.V. and has been declared unconditional. Except as described under “—Modification and Waiver”, the provisions in the indentures relating to the Stellantis debt issuer’s obligation to make an offer to repurchase debt securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the holders of a majority in principal amount of the then outstanding debt securities of the applicable series under the applicable indenture.
Definitions:
“Change of Control” means the occurrence of any of the following after the issue date of the applicable series of debt securities:
1.the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act, or any successor provision), other than one or more Related Parties, becomes the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of Stellantis N.V. measured by voting power rather than number of shares; or
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2.the stockholders of the applicable Stellantis debt issuer or the guarantor, as the case may be, approve any plan of liquidation or dissolution of such Stellantis debt issuer or guarantor, other than in connection with a merger, consolidation or other form of combination while such Stellantis debt issuer or guarantor is solvent, with another company where such company, in the case of a Stellantis debt issuer, assumes all obligations of such Stellantis debt issuer under such debt securities and, in the case of the guarantor, assumes all obligations of the guarantor under the guarantee and where such merger, consolidation or other combination does not have the effect of or result in an event described in paragraph (1) above.
“Change of Control Event” means the occurrence of a Change of Control and a Rating Decline.
“Rating Agency” means Moody’s or S&P (each as herein defined), or, if either such entity ceases to rate the debt securities for reasons outside of the control of the applicable Stellantis debt issuer or guarantor, any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Rating Date” means (i) the date one business day prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only with respect to the type of transaction specified in clause (1) of the definition of Change of Control, the date one business day before the first public announcement of a definitive agreement with respect to such transaction and (ii) in the event that a Rating Agency has announced a Rating Decline of the debt securities within 90 days prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only with respect to the type of transaction specified in clause (1) of the definition of Change of Control, within 90 days before the first public announcement of a definitive agreement with respect to such transaction, and the official statement issued by a Rating Agency announcing the Rating Decline refers to such event or transaction as a reason for such downgrade, the date one business day prior to such announcement by a Rating Agency.
“Rating Decline”, with respect to a series of debt securities, means the occurrence on any date within the 90-day period following the occurrence of the event specified in clauses (1) or (2) of the definition of Change of Control (which period shall be extended so long as during such period any rating of the debt securities of the applicable series is under publicly announced consideration for possible downgrade by a Rating Agency, provided that such extension shall not be for more than 30 days) of: (i) in the event such debt securities are rated by any Rating Agency on the Rating Date below Investment Grade (a) the rating of such debt securities by such Rating Agency is downgraded by at least one rating category below the rating of such debt securities by such Rating Agency on the Rating Date and not subsequently upgraded to its earlier rating (or better) by such Rating Agency within such period, or (b) such debt securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate the earlier rating (or better) that it had assigned to such debt securities during such period; or (ii) in the event such debt securities are rated by any Rating Agency on the Rating Date as Investment Grade (a) the rating of such debt securities by such Rating Agency is downgraded to below Investment Grade and not subsequently upgraded to Investment Grade by such Rating Agency within such period, or (b) such debt securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate an Investment Grade rating to such debt securities during such period, provided that: (x) any such decision of the relevant Rating Agency to downgrade or cease to rate such debt securities referred to in paragraph (i) or (ii) above shall not be deemed to have occurred in respect of a particular Change of Control if such Rating Agency does not publicly announce or confirm that such decision was the result, in whole or in part, of the event specified in clauses (1) or (2) of the definition of Change of Control; and (y) if at the time of the event specified in clauses (1) or (2) of the definition of Change of Control such debt securities are not rated by a Rating Agency, and no Rating Agency assigns an Investment Grade rating to such debt securities within the 90-day period following the occurrence of the event specified in clauses (1) or (2) of the definition of Change of Control, a Rating Decline will be deemed to have occurred. In determining how many rating categories the rating of such debt securities has decreased, gradation will be taken into account (e.g., with respect to S&P, a decline in a rating from BB+ to BB, or from BB to BB-, will constitute a decrease of one rating category).
“Related Party” means (i) each of the owners and beneficial holders of interests in Giovanni Agnelli B.V. (at the issue date of the applicable series of debt securities) and each of their spouses, heirs, legatees, descendants and blood relatives to the third degree, (ii) Giovanni Agnelli B.V., (iii) any person directly or indirectly under the Control of Giovanni Agnelli B.V., (iv) Etablissements Peugeot Frères, (v) any person directly or indirectly under the Control of Etablissements Peugeot Frères, (vi) Peugeot Invest, or (vii) any person directly or indirectly under the Control of Peugeot Invest. For the purposes of this definition, the term “Control” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50% of the Voting Stock of a person measured by voting power rather than
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number of shares or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a person.
“Investment Grade” means a rating of BBB- or higher by S&P or a rating of Baa3 or higher by Moody’s or the equivalent of such ratings.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” of any person as of any date means the capital stock of such person that is at the time entitled to vote in the election of the board of directors of such person.
“Etablissements Peugeot Frères” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 875 750 317.
“Peugeot Invest” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 562 075 390.
Repurchase
Each Stellantis debt issuer may at any time and from time to time purchase debt securities in the open market or by tender or by private agreement, if applicable law allows. The debt securities purchased by the applicable Stellantis debt issuer may be held, resold or, at the applicable Stellantis debt issuer’s option, surrendered to the trustee for cancellation.
Payment of Additional Amounts
All payments in respect of the debt securities or in respect of the guarantees by the applicable Stellantis debt issuer or the guarantor, as applicable, shall be made free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Tax”) imposed, collected, withheld, assessed or levied by or on behalf of any jurisdiction in which the applicable Stellantis debt issuer, the guarantor, a paying agent, or any other person on behalf of the applicable Stellantis debt issuer or the guarantor, or any successor thereto (each, a “Payor”) is incorporated, organized or tax resident, or any governmental authority or political subdivision thereof or therein having the power to tax (a “Relevant Jurisdiction”), unless any withholding or deduction of Tax is required by the laws of any Relevant Jurisdiction.
Where any withholding or deduction of Tax is required by the law of any Relevant Jurisdiction, we will, subject to the exceptions and limitations set forth below, pay as additional interest such additional amounts as are necessary to make the net amount paid to the affected holders equal the amount the holders would have received in the absence of the deduction or withholding.
We will not have to pay additional amounts under any (or any combination) of the following circumstances:
•the Tax is only payable because a present or former type of connection exists or existed between the holder or beneficial owner of the debt security and a Relevant Jurisdiction, other than a connection related solely to purchase, ownership or mere holding of such debt security or the receipt of principal or interest in respect of it;
•the Tax is imposed or withheld by the United States of America solely because the beneficial owner, or a fiduciary, settlor, beneficiary or member of the beneficial owner if the beneficial owner is an estate, trust, or partnership, or a person holding a power over an estate or trust administered by a fiduciary holder: (a) is or was a citizen or resident of, or is or was treated as a resident of, the United States of America; (b) is or was a personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States of America or is or was a corporation that has accumulated earnings to avoid United States of America federal income tax; (c) is or was a bank receiving interest described in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”); (d) is or was an actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the applicable
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Stellantis debt issuer or the guarantor entitled to vote; or (e) is or was subject to tax under Section 4948(a) of the Code;
•the holder is not the sole beneficial owner of the debt security, or a portion thereof, or the holder is a fiduciary or partnership, but only to the extent that the beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of any additional amount had such beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
•the Tax is imposed or withheld because the beneficial owner or any other person failed to accurately comply with a request from the applicable Stellantis debt issuer, the guarantor or any paying agent to meet certification, identification or information reporting requirements concerning the nationality, residence, identity or similar information relating to the holder or beneficial owner of a debt security or to satisfy any information or reporting requirement, or to present the relevant debt security (if certificated), if compliance with such action is required as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge by the Relevant Jurisdiction;
•the Tax is payable or imposed in a manner that does not involve withholding or deduction by the applicable Stellantis debt issuer or the guarantor or a paying agent from the payment;
•the Tax is imposed or withheld solely because of a change in law, regulation, or administrative or judicial interpretation that becomes effective after the day on which the payment becomes due or duly provided for, whichever occurs later;
•the Tax is on account of any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or similar Tax;
•the Tax is imposed on a holder or beneficial owner who could have avoided such withholding or deduction by presenting its debt securities for payment, if presentation is required, to a different paying agent; or
•the Tax is imposed pursuant to the Dutch Withholding Tax Act 2021 (Wet bronbelasting 2021).
Notwithstanding anything to the contrary under this Section “—Payment of Additional Amounts”, none of the Stellantis debt issuers, the guarantor, any paying agent or any other person shall be required to pay any additional amounts with respect to any withholding or deduction imposed on or in respect of any debt security pursuant to Sections 1471-1474 of the Code (and any current and future regulations or official interpretations thereof) (“FATCA”), the laws of The Netherlands implementing FATCA or any agreement between such Stellantis debt issuer or guarantor and any taxing or governmental authority entered into for FATCA purposes.
The prospectus supplement relating to the debt securities may describe additional circumstances in which we would not be required to pay additional amounts.
Certain Covenants
The indentures do not contain any covenants restricting our ability to make payments, dispose of assets, issue and sell capital stock, enter into transactions with affiliates, create or incur liens on our property or engage in business other than our present business, except as described under “Negative Pledge; Securitizations Not Restricted” and “—Consolidation, Merger and Sale of Assets”. A particular series of debt securities, however, may contain restrictive covenants of this type, which we will describe in the applicable prospectus supplement.
Negative Pledge; Securitizations Not Restricted
For so long as any debt securities remain outstanding, neither the applicable Stellantis debt issuer nor the guarantor, as the case may be, will create any mortgage, charge, pledge, lien, encumbrance or other security interest (“Lien”) (other than a Permitted Lien) upon its assets to secure any Quoted Indebtedness or any Qualifying Guarantee of such Quoted Indebtedness, unless in any such case the applicable Stellantis debt issuer or the guarantor, as the case may be, grant, for the benefit of holders of the debt securities, a security interest in such assets that is equal and ratable to the security interests in favor of the holders of the Quoted Indebtedness (or, in the case of a Lien securing Quoted Indebtedness that is expressly subordinated or junior to the Notes of that series, secured by a Lien that is senior in priority to such Lien).
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Notwithstanding anything in the applicable indenture or the debt securities to the contrary, the applicable indenture and the debt securities shall not be deemed to prohibit or restrict, and no event of default under the applicable indenture and the debt securities shall result from the existence of any default, violation, early amortization or other adverse event or circumstance under, any Non-recourse Securitization.
Definitions:
“Financial Services Subsidiary” means a subsidiary of Stellantis N.V.:
A. which carries on no material business other than the offer and sale of financial services products to customers, dealers or suppliers of Members of the Group (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing and rental business activities) in any of the following areas:
1. retail financing for the purchase, contract hire or lease of new or old equipment manufactured by a Member of the Group or any other manufacturer whose products are from time to time sold through the dealer network of a Member of the Group;
2. other retail and wholesale financing programs reasonably related thereto, including, without limitation, financing to the dealer network of any Member of the Group;
3. insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and
4. factoring and/or licensed banking activities; or
B. a holding company of a Financial Services Subsidiary which carries on no material business or activity other than holding shares in that Financial Services Subsidiary and/or activities described in clause (A) above.
“Indebtedness” means any indebtedness (whether principal, premium or interest) for or in respect of (A) any notes, bonds, debenture stock, loan stock or other securities, (B) any Loan Financing, or (C) any liability under or in respect of any banker’s acceptance or banker’s acceptance credit; provided, that (x) indebtedness of a Member of the Group to any other Member of the Group and (y) indebtedness that qualifies as Non-recourse Securitization Debt shall, in each case, not be deemed to be Indebtedness for purposes of the Negative Pledge or any other purpose under the indentures or the debt securities.
“Loan Financing” means any money borrowed from (A) a bank, financial institution, hedge fund, pension fund, or insurance company or (B) any other entity having as its principal business the lending of money and/or investing in loans, in each case other than public or quasi-public entities or international organizations with a public or quasi-public character.
“Member of the Group” means each of Stellantis N.V. and any direct or indirect subsidiary it fully consolidates on the basis of which Stellantis N.V.’s most recent audited consolidated financial statements were prepared.
“Non-recourse Securitization” means any securitization, asset backed financing or transaction having a similar effect of Securitizable Assets, for which the issuers or borrowers do not provide recourse for credit losses other than Standard Securitization Undertakings.
“Non-recourse Securitization Debt” means any Indebtedness incurred by a Securitization Entity pursuant to a securitization of receivables where the recourse in respect of that Indebtedness to the applicable Stellantis debt issuer or the guarantor is limited to:
A. those receivables and/or related insurance and/or any Standard Securitization Undertakings; and
B. if those receivables comprise all or substantially all of the business or assets of such Securitization Entity, the shares or other interests of any Member of the Group in such Securitization Entity; provided that any Indebtedness not qualifying as Non-recourse Securitization Debt solely because the extent of recourse to any Member of the Group
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with respect to such Indebtedness is greater than that provided in clauses (A) and (B) above shall only not qualify as Non-recourse Securitization Debt with respect to the extent of such additional recourse.
“Permitted Liens” means:
A. Liens existing on the issue date of the applicable debt securities;
B. Liens arising by operation of law, by contract having an equivalent effect, from rights of set-off arising in the ordinary course of business between the applicable Stellantis debt issuer or the guarantor, as the case may be, and any of their respective suppliers or customers, or from rights of set-off or netting arising by operation of law (or by contract having similar effect) by virtue of the provision to the applicable Stellantis debt issuer or the guarantor, as the case may be, of clearing bank facilities or overdraft facilities;
C. any Lien over:
1. the receivables of a Securitization Entity (and any bank account to which such proceeds are deposited) which are subject to a Non-recourse Securitization as security for Non-recourse Securitization Debt raised by such Securitization Entity in respect of such receivables; and/or
2. the shares or other interests owned by any Member of the Group in any Securitization Entity as security for Non-recourse Securitization Debt raised by such Securitization Entity provided that the receivables or revenues which are the subject of the relevant Non-recourse Securitization comprise all or substantially all of the business of such Securitization Entity;
D. any Liens on assets acquired by a Member of the Group after the applicable issue date, provided that (i) such Lien was existing or agreed to be created at or before the time the relevant asset was acquired by a Member of the Group, (ii) such Lien was not created in contemplation of such acquisition, and (iii) the principal amount then secured does not exceed the principal amount of the committed financing then secured (whether or not drawn), with respect to such assets at the time the relevant asset was acquired by a Member of the Group;
E. any Lien created to secure all or any part of the purchase price, or to secure Quoted Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of construction, of property (or any improvement thereon) acquired or constructed by the applicable Stellantis debt issuer or the guarantor, as the case may be, after the applicable issue date, provided, that (i) any such Lien shall extend solely to the item or items of property (or improvement thereon) so acquired or constructed and (ii) the principal amount of Quoted Indebtedness secured by any such Lien shall at no time exceed an amount equal to the fair market value of such property (or any improvement thereon) at the time of such acquisition or construction;
F. any Lien securing Quoted Indebtedness incurred to refinance other indebtedness itself secured by a Lien included in clauses (A), (B), (D) or (E) above, but only if the principal amount of the Quoted Indebtedness is not increased and only the same assets are secured as were secured by the prior Lien;
G. any Lien provided in favor of any bank or governmental (central or local), intergovernmental or supranational body, agency, department or other authority securing any of the applicable Stellantis debt issuer’s or the guarantor’s Quoted Indebtedness under a loan scheme operated by (or on behalf of) Banco Nacional de Desenvolvimento Economico e Social, Finame, Banco de Minas Gerais, the United States Department of Energy, the United States Department of the Treasury, a member country of the OECD, Argentina, Brazil, China, India, South Africa or any supranational entity (such as the European Bank for Reconstruction and Development or the International Finance Corporation) where the provision of such Lien is required for the relevant loan; or
H. (i) any Lien created on the shares of capital stock of any of Stellantis N.V.’s subsidiaries, and (ii) any Lien created on the assets of any of Stellantis N.V.’s subsidiaries of the type described in clause (E) above other than shares of capital stock of any of Stellantis N.V.’s subsidiaries.
“Qualifying Guarantee” means a direct or indirect guarantee in respect of any Indebtedness or a direct or indirect indemnity against the consequences of a default in the payment of any Indebtedness, other than, in each case, by endorsement of negotiable instruments, letters of credit or reimbursement agreements in the ordinary course of business.
“Quoted Indebtedness” means any Indebtedness in the form of, or represented by, bonds, notes, debentures, loan stock or other securities and which at the time of issue is, or is capable of being, quoted, listed or ordinarily dealt in
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on any stock exchange or over-the-counter market or other securities market (whether or not initially distributed by means of a private placement).
“Securitizable Asset” means receivables, loans, installment sales contracts, leases and/or leased assets, and incidental assets related thereto (or any interests therein) or interests or securities representing or dependent on collection of any of the foregoing.
“Securitization Entity” means any special purpose vehicle created for the sole purpose of carrying out, or otherwise used solely for the purpose of carrying out a Non-recourse Securitization or any other Subsidiary that is effecting Non-recourse Securitization.
“Standard Securitization Undertakings” means representations, warranties, covenants, guarantees and indemnities entered into by any Member of the Group from time to time which are customary in relation to Non-recourse Securitization, including any payment or performance undertakings with respect to origination or servicing obligations or undertakings with respect to breaches of representations or warranties.
Consolidation, Merger and Sale of Assets
The Stellantis debt issuers and the guarantor may consolidate or amalgamate with or merge with or into any other person, and may sell, transfer, or lease or convey all or substantially all of their properties and assets to another person. However, neither the Stellantis debt issuers nor the guarantor shall consolidate or amalgamate with or merge into any other person, or convey, transfer or lease all or substantially all of its assets to any other person, unless the following conditions are satisfied:
1. When the applicable Stellantis debt issuer or the guarantor merges or consolidates out of existence or sells or leases its respective properties and assets substantially as an entirety, the other company or firm must be organized under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof, the U.K., Canada or any province thereof, Japan, Switzerland, or any member state of the European Union or any political subdivision thereof;
2. The person the applicable Stellantis debt issuer or the guarantor merges with or into, or consolidates out of existence with, or sells or leases its properties or assets substantially as an entirety to, must, by a supplemental indenture executed and delivered to the trustee, (i) (a) in the case of the guarantor, expressly guarantee, or (ii) in the case of a Stellantis debt issuer, expressly assume, the due and punctual payment of the principal of and any premium and interest on all debt securities of the relevant series, and (ii) expressly assume the performance or observance of every covenant of the applicable indenture on the part of the applicable Stellantis debt issuer or the guarantor, as the case may be, to be performed or observed; and
3. The consolidation, merger or sale of assets must not cause a default on any series of outstanding debt securities under the applicable indenture, and the applicable Stellantis debt issuer and the guarantor must not already be in default (unless the merger or other transaction would cure the default). For purposes of this no-default test, a default would include an event of default (as defined below) that has occurred and not been cured. A default for this purpose would also include any event that would be an event of default if the requirements for giving the applicable Stellantis debt issuer default notice or the Stellantis debt issuer’s default having to exist for a specific period of time were disregarded.
If the conditions described above are satisfied with respect to debt securities of a series, the applicable Stellantis debt issuer or the guarantor will not need to obtain the approval of the holders of such series of debt securities in order to merge or consolidate or to sell their assets (see “—Change of Control Put” for a more detailed discussion). Furthermore, these conditions will apply only if a Stellantis debt issuer or the guarantor wish to merge or consolidate with another entity or sell their properties and assets substantially as an entirety to another entity. The Stellantis debt issuers and the guarantor will not need to satisfy these conditions if they enter into other types of transactions, including any transaction in which they acquire the stock or assets of another entity, any transaction that involves a change of control but in which they do not merge or consolidate and any transaction in which they do not sell their properties and assets substantially as an entirety. It is possible that this type of transaction may result in a reduction in a Stellantis debt issuer’s or the guarantor’s credit rating, may reduce the guarantor’s operating results or may impair its financial condition. Holders of debt securities, however, will have no approval right with respect to any transaction of this type.
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If a Stellantis debt issuer or the guarantor amalgamates or consolidates with or merges with or into any other person, or sells, transfers, or leases or conveys all or substantially all of their properties and assets to another person, in each case as described above, the successor person in any such transaction shall succeed to, and be substituted for, and may exercise every right and power of, the applicable Stellantis debt issuer or the guarantor, as the case may be, under the applicable indenture and the debt securities, and the applicable Stellantis debt issuer or the guarantor, as the predecessor person, except in the case of a lease, shall be released from all of their respective obligations under the applicable indenture and the debt securities.
Issuer Substitution
Under the Stellantis indenture, Stellantis is permitted to transfer its obligations, as issuer of the debt securities of any series, to any Treasury Subsidiary (as defined below under “—Default and Related Matters—Events of Default”), so long as (i) no event of default has occurred in respect of such debt securities, (ii) no payment in respect of such debt securities is at the relevant time overdue, (iii) that Treasury Subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Stellantis indenture, and (iv) the obligations of that Treasury Subsidiary are fully and unconditionally guaranteed by Stellantis. The provisions of the Stellantis indenture with respect to consolidation, merger or sale or lease of assets will continue to apply to Stellantis in its capacity as guarantor of the debt securities of the applicable series.
Under the Stellantis Finance indenture, Stellantis Finance is permitted to transfer its obligations, as issuer of the debt securities of any series, to Stellantis or to any Treasury Subsidiary (as defined below under “—Default and Related Matters—Events of Default”), so long as (i) no event of default has occurred in respect of such debt securities, (ii) no payment in respect of such debt securities is at the relevant time overdue, and (iii) Stellantis or that Treasury Subsidiary executes a supplemental indenture in which it agrees to be bound by the terms of such debt securities and the Stellantis Finance indenture. If a Treasury Subsidiary assumes the obligations of Stellantis Finance in respect of any debt securities and under the Stellantis Finance indenture, the obligations of such Treasury Subsidiary will be fully and unconditionally guaranteed by Stellantis on substantially the same terms as the guarantee. If Stellantis assumes the obligations of Stellantis Finance in respect of any debt securities and under the Stellantis Finance indenture, the guarantee of Stellantis with respect to such debt securities shall terminate without any requirement that any action be taken by Stellantis Finance, Stellantis or the trustee.
Under U.S. tax law, the change in the obligor on the debt securities of any series could be treated as a disposition of such debt securities that you hold, resulting in your realization of gain or loss on such debt securities even though you continue to hold the debt securities and receive no distribution in connection with the deemed disposition. A change in the obligor might also result in possible other adverse tax consequences.
In case of a substitution, the substitute issuer will indemnify each holder of the debt securities of the applicable series against any tax, duty, assessment or governmental charge that is imposed on such holder by certain specified jurisdictions which would not have been imposed had the substitution not been made, as well any costs or expenses relating to the substitution.
No vote by holders of the debt securities approving any of these actions is required, unless as part of the transaction we make changes to the applicable indenture requiring your approval, as described under “—Modification and Waiver”. We may take these actions as part of a transaction involving outside third parties or as part of an internal corporate reorganization. We may take these actions even if they result in a lower credit rating being assigned to the debt securities of the applicable series.
Modification and Waiver
There are three types of changes we can make to the indentures and the debt securities.
Changes Requiring Your Approval. First, there are changes that cannot be made to your debt securities without your specific approval. Following is a list of those types of changes:
•reduce the principal amount of or change the stated maturity of a debt security or alter or waive the provisions with respect to the redemption of a debt security;
•reduce the rate of or change the time for payment of interest on a debt security;
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waive a default in the payment of principal of or premium, if any, or interest on a debt security (except a rescission of acceleration of a debt security by holders of at least a majority in aggregate
•principal amount of such debt security and a waiver of the payment default that resulted from such acceleration) or in respect of a covenant or provision contained in the indenture which cannot be amended or modified without the consent of all affected holders;
•make a debt security payable in money other than that stated therein;
•make any change in the provisions of the indenture relating to waivers of past defaults or the rights of holders to receive payments of principal of or premium, if any, or interest on a debt security;
•make any change in these amendment and waiver provisions;
•in case of debt securities issued by Stellantis Finance, release the guarantor from any of its obligations under its guarantee or the indenture, except in accordance with the terms of the applicable indenture;
•impair the right of any holder to receive payment of principal of, or interest on such holder’s debt security on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such holder’s debt security; or
•make any change to the ranking of a series of debt securities or the guarantees that would materially adversely affect the rights of holders of debt securities of such series.
Changes Requiring a Majority Vote. The second type of change to the indentures and the debt securities is the kind that requires a vote in favor by holders of debt securities owning not less than a majority of the principal amount of the outstanding securities of the particular series affected. Most changes fall into this category, except for clarifying changes and certain other changes described below under “—Changes Not Requiring Your Approval”. The same vote would be required for us to obtain a waiver of a past default. However, we cannot obtain a waiver of a payment default or any other aspect of the applicable indenture or the debt securities described above under “—Changes Requiring Your Approval” unless we obtain the consent of each holder affected thereby.
Changes Not Requiring Approval. The third type of change does not require any vote by holders of debt securities. Following is a list of these types of changes:
•cure any ambiguity, omission, mistake, defect or inconsistency that does not materially adversely affect the rights of the holders;
•comply with the provisions relating to consolidations, amalgamations, mergers and sales and substitution in the applicable indenture;
•provide for the assumption of the applicable Stellantis debt issuer’s or guarantor’s obligations to the holders;
•make any change that would provide any additional rights or benefits to the holders or that, as determined in good faith by the applicable Stellantis debt issuer, does not adversely affect the legal rights under the indenture of any such holder;
•add covenants for the benefit of the holders or to surrender any right or power conferred upon the applicable Stellantis debt issuer or the guarantor;
•evidence the succession of another person to the applicable Stellantis debt issuer or the guarantor, and the assumption by any such successor of, covenants in the indenture and in each series of debt securities;
•conform the applicable indenture, the guarantees and the form or terms of the debt securities to the terms of such series included in the prospectus supplement;
•secure the debt securities;
•establish the form or terms of debt securities of any series or any associated guarantees;
•evidence and provide for the acceptance and appointment under the applicable indenture of a successor trustee thereunder pursuant to the requirements thereof;
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•add to, change or eliminate any of the provisions of the applicable indenture to such extent as shall be necessary to comply with the rules or regulations on any securities exchange or automated quotation system on which the debt securities may be listed or traded;
•to comply with the requirements of the SEC to maintain qualification of the applicable indenture under the Trust Indenture Act;
•to eliminate any conflict between the terms of the applicable indenture and the Trust Indenture Act that does not materially adversely affect the rights of the holders; or
•supplement any of the provisions of the applicable indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any debt security, provided that any such action shall not adversely affect the interests of the holders of such debt security or any other series of debt securities in any material respect, as determined in good faith by the applicable Stellantis debt issuer.
Further Details Concerning Voting. When taking a vote, we will use the following rules to decide how much principal amount to attribute to a security:
•for original issue discount securities, we will use the principal amount that would be due and payable on the voting date if the maturity of the debt securities were accelerated to that date because of a default;
•for debt securities whose principal amount is not known (for example, because it is based on an index), we will use a special rule for that security described in the prospectus supplement;
•for debt securities denominated in one or more foreign currencies or currency units, we will use the U.S. dollar equivalent;
•debt securities will not be considered outstanding, and therefore not eligible to vote, if we have deposited or set aside in trust for you money for their payment or redemption. Debt securities will also not be eligible to vote if they have been fully defeased as described later under “—Defeasance and Discharge”; and
•we will generally be entitled to set any day as a record date for the purpose of determining the holders of outstanding debt securities that are entitled to vote or take other action under the applicable indenture. In limited circumstances, the trustee will be entitled to set a record date for action by holders. If we or the trustee set a record date for a vote or other action to be taken by holders of a particular series, that vote or action may be taken only by persons who are holders of outstanding debt securities of that series on the record date and must be taken within 180 days following the record date or another period that we may specify (or as the trustee may specify, if it set the record date). We may shorten or lengthen (but not beyond 180 days) this period from time to time.
| Street name and other indirect holders should consult their banks or brokers for information on how approval may be granted or denied if we seek to change an indenture or the debt securities or request a waiver. | ||
Defeasance and Discharge
The following discussion of full defeasance and discharge and covenant defeasance and discharge will be applicable to your series of debt securities only if we choose to have them apply to that series. If we do so choose, we will state that in the prospectus supplement.
Full Defeasance
A Stellantis debt issuer can legally release itself from any payment or other obligations on the debt securities, except for various obligations described below, if it, in addition to other actions, puts in place the following arrangements for you to be repaid:
•It must deposit in trust for your benefit and the benefit of all other direct holders of the applicable series of debt securities a combination of money and U.S. government or U.S. government agency notes or bonds that will
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generate enough cash to make interest, principal and any other payments on such series of debt securities on their various due dates.
•It must deliver to the trustee a legal opinion of counsel confirming that as a result of a change in U.S. federal income tax law it may make the above deposit without causing you to be taxed on the debt securities any differently than if it did not make the deposit and just repaid the debt securities itself or stating that it has received from, or there has been published by, the U.S. Internal Revenue Service (“IRS”) a ruling that states the same conclusion.
However, even if a Stellantis debt issuer takes these actions, a number of its obligations relating to the debt securities will remain. These include the following obligations:
•to register the transfer and exchange of debt securities;
•to replace mutilated, destroyed, lost or stolen debt securities;
•to maintain paying agencies; and
•to hold money for payment in trust.
Covenant Defeasance
A Stellantis debt issuer can be legally released from compliance with certain covenants if, in addition to other actions, we take all the steps described above under “—Defeasance and Discharge” except that the opinion of counsel does not have to refer to a change in United States federal income tax laws or a ruling from the United States Internal Revenue Service. If a Stellantis debt issuer accomplishes covenant defeasance, you can still look to it for repayment of the debt securities if there is a shortfall in the trust deposit.
Default and Related Matters
Ranking
The debt securities are not secured by any of our property or assets. Accordingly, your ownership of debt securities means you are one of the unsecured creditors of the applicable Stellantis debt issuer. The debt securities may or may not be subordinated to any of our other debt obligations as indicated in the applicable prospectus supplement. If they are not subordinated, the debt securities will rank with all other unsecured and unsubordinated indebtedness of the applicable Stellantis debt issuer.
Events of Default
You will have special rights if an event of default occurs and is not cured, as described later in this subsection.
What Is an Event of Default? The term event of default means any of the following:
•The applicable Stellantis debt issuer does not pay interest on a debt security, or any additional amounts payable thereon, within 30 days of its due date.
•The applicable Stellantis debt issuer does not pay the principal or any premium on a debt security within five days of its due date.
•The applicable Stellantis debt issuer or guarantor does not comply with its obligations under “—Consolidation, Merger and Sale of Assets”.
•The applicable Stellantis debt issuer remains in breach of its obligation to make a Change of Control Offer as described under “—Change of Control Put” for 60 days after it receives a notice of default stating it is in breach. The notice must be sent by either the trustee or holders of at least 25 percent of the principal amount of debt securities of the affected series.
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•The applicable Stellantis debt issuer remains in breach of any covenant or any other term of the indenture for 90 days after it receives a notice of default stating it is in breach. The notice must be sent by either the trustee or holders of at least 25 percent of the principal amount of debt securities of the affected series.
•Indebtedness of the applicable Stellantis debt issuer or guarantor or the Indebtedness of a Material Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds €250 million; provided, however, that it will be deemed not to be an event of default if such Indebtedness is paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 30 business days after such failure to pay or such acceleration.
•The applicable Stellantis debt issuer or guarantor files for bankruptcy or certain other events in bankruptcy, insolvency, or creditor arrangement or composition occur.
•In case of any debt securities issued by Stellantis Finance, (a) Stellantis Finance ceases to be controlled directly or indirectly by the guarantor, or (b) the guarantee ceases to be valid and legally binding or the guarantor seeks to deny or disaffirm its obligations under the guarantee.
•Any other event of default provided with respect to securities of that series.
Remedies If an Event of Default Occurs. If an event of default (other than of a type specified in clause (7) above) occurs and is continuing under the applicable indenture with respect to the debt securities of any series, the trustee or the holders of not less than 25 percent in aggregate principal amount of the outstanding debt securities of the affected series may declare the entire principal amount of all the debt securities of that series, and the interest accrued thereon, to be due and immediately payable, by a notice in writing to the applicable Stellantis debt issuer (and to the trustee if given by the holders); provided however, that if an event of default of a type specified in clause (7) above occurs with respect to any series of outstanding debt securities, the principal amount of that series shall automatically, and without any declaration or other action on the part of the trustee or any holder, become immediately due and payable.
The holders of a majority in aggregate principal amount of the outstanding debt securities of an affected series, by written notice to the trustee as provided in the applicable indenture, may, on behalf of the holders of all the outstanding debt securities of such series, waive any existing default with respect to such series and its consequences under the applicable indenture (except a continuing default in the payment of interest on, premium, if any, or the principal of any outstanding debt security held by a non-consenting holder) and rescind any acceleration with respect to such series and its consequences (except if such rescission would conflict with any judgment of a court of competent jurisdiction). In the event of any event of default specified in clause (6) above, such event of default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the applicable series of outstanding debt securities) shall be annulled, waived and rescinded, automatically and without any action by the trustee or the holders, if within 30 days after such event of default arose: (1) the indebtedness that is the basis for such event of default has been discharged; (2) holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such event of default; or (3) the default that is the basis for such event of default has been cured.
Except in cases of default, where the trustee has some special duties, the trustee is not required to take any action under the applicable indenture at the request of any holders unless the holders offer the trustee reasonable protection from costs, expenses and liability. This protection is called an indemnity. If reasonable indemnity is provided, the holders of a majority in principal amount of the outstanding debt securities of any series may direct the time, method and place of conducting any proceeding seeking any remedy available to the trustee. These majority holders may also direct the trustee in performing any other action under the applicable indenture. The trustee may decline to follow any such direction if the trustee in good faith determines that the proceeding so directed would involve the trustee in personal liability.
Before you bypass the trustee and bring your own lawsuit or other formal legal action or take other steps to enforce your rights or protect your interests relating to the debt securities, the following must occur:
•The trustee must be given written notice that an event of default has occurred and remains uncured.
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•The holders of not less than 25 percent in principal amount of all outstanding debt securities of the relevant series must make a written request that the trustee institute proceedings because of the default, and must offer reasonable indemnity to the trustee against the costs, expenses and liabilities of taking such request.
•The trustee must have not taken action for 60 days after receipt of the above notice, request and offer of indemnity.
•No direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of the majority in principal amount of the outstanding securities of that series.
•However, you are entitled at any time to bring a lawsuit for the payment of money due on your security on or after its due date.
| Street name and other indirect holders should consult their banks or brokers for information on how to give notice or direction to or make a request of the trustee and to make or cancel a declaration of acceleration. | ||
The applicable Stellantis debt issuer will furnish to the trustee every year a written statement of certain of its officers and directors certifying that, to their knowledge, the applicable Stellantis debt issuer is in compliance with the indenture and the debt securities, or else specifying any default.
Definitions:
“Material Subsidiary” means (A) Stellantis Europe S.p.A. (and any other person Controlled by Stellantis N.V. which Stellantis Europe S.p.A. is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (B) FCA US LLC (and any other person Controlled by Stellantis N.V. which FCA US LLC is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (C) any Member of the Group the total assets or revenues of which on a stand-alone basis (excluding intra-Group items and as determined from the entity’s most recent financial statements on the basis of which the guarantor’s most recent audited consolidated financial statements were prepared) constitutes 10% or more of the consolidated total assets or revenues of the Group (as determined from Stellantis N.V.’s most recent audited consolidated financial statements); (D) any Treasury Subsidiary or (E) any entity under Stellantis N.V.’s direct or indirect Control that directly or indirectly Controls a subsidiary that meets the requirements of the preceding clauses (A), (B), (C) or (D), provided that if any such entity Controls such a subsidiary only pursuant to the aggregate ownership test specified in the proviso to clause (1) of the definition of “Control,” “Controls” or “Controlled” below, then, and only then, the applicable Stellantis debt issuer and guarantor shall have the right to designate which such entities shall be deemed to so Control such a subsidiary provided that, in each case, such designated entities Control in the aggregate more than 50% of the relevant subsidiary’s voting stock. For purposes of this definition of “Material Subsidiary,” (i) the term “Control,” “Controls” or “Controlled” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50% of the voting stock of a person measured by voting power rather than number of shares, provided that to the extent that no single entity directly owns more than 50% of the voting stock of a person, entities with aggregate direct or indirect ownership of more than 50% of the voting stock of a person will be deemed to Control such person or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a person and (ii) no Financial Services Subsidiary shall be considered or deemed to be a Material Subsidiary. Notwithstanding the foregoing, a subsidiary shall be considered or deemed to be a Material Subsidiary only to the extent that such subsidiary is located or domiciled in an OECD Country (or, to the extent that the OECD or a successor organization no longer exists, the countries that were members of the relevant organization on the date such organization ceased to exist).
“OECD Country” means a country that is a member of the Organization for Economic Co-operation and Development (“OECD”) or any successor organization at the time of the occurrence of a payment default or acceleration specified in “—Events of Default” above (or, to the extent that the OECD or a successor organization no longer exists, at the time the relevant organization ceased to exist).
“Treasury Subsidiary” means (A) Fiat Chrysler Finance Europe société en nom collectif, (B) Stellantis Finance, and (C) any other subsidiary of Stellantis N.V. the primary purpose of which is borrowing funds, issuing securities or incurring Indebtedness from third parties. For the avoidance of doubt, “Treasury Subsidiary” does not, and shall not be deemed to, include any Financial Services Subsidiary.
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Additional Mechanics
Exchange and Transfer
You may have your debt securities broken into more debt securities of smaller denominations or combined into fewer debt securities of larger denominations, as long as the total principal amount is not changed. This is called an exchange.
You may exchange or transfer registered debt securities at the office of the trustee. The trustee acts as our agent for registering debt securities in the names of holders and transferring registered debt securities. We may change this appointment to another entity or perform the service ourselves. The entity performing the role of maintaining the list of registered holders is called the security registrar. It will also register transfers of the registered debt securities.
You will not be required to pay a service charge for registering a transfer or exchange of debt securities, but you may be required to pay for any tax or other governmental charge associated with the registration of the exchange or transfer. The transfer or exchange of a registered debt security will only be made if the security registrar is satisfied with your proof of ownership.
If we have designated additional transfer agents, they are named in the prospectus supplement. We may cancel the designation of any particular transfer agent. We may also approve a change in the office through which any transfer agent acts.
If the debt securities are redeemable and we redeem less than all of the debt securities of a particular series, we may block the transfer or exchange of debt securities during a specified period of time in order to freeze the list of holders to prepare the mailing. The period begins 15 days before the day we mail the notice of redemption and ends on the day of that mailing. We may also refuse to register transfers or exchanges of debt securities selected for redemption. However, we will continue to permit transfers and exchanges of the unredeemed portion of any security being partially redeemed.
Payment and Paying Agents
We will pay interest to you if you are a direct holder listed in the trustee’s records at the close of business on a particular day in advance of each due date for interest, even if you no longer own the security on the interest due date. That particular day, usually about two weeks in advance of the interest due date, is called the regular record date and is stated in the applicable prospectus supplement
.
Holders buying and selling debt securities must work out between them how to compensate for the fact that we will pay all the interest for an interest period to the one who is the registered holder on the regular record date. The most common manner is to adjust the sales price of the debt securities to prorate interest fairly between buyer and seller.
We will pay interest, principal and any other money due on the registered debt securities at the corporate trust office of the trustee in New York City. You must make arrangements to have your payments picked up at or wired from that office. We may also choose to pay interest by mailing checks. Interest on global securities will be paid to the holder thereof by wire transfer of same day funds.
| Street name and other indirect holders should consult their banks or brokers for information on how they will receive payments. | ||
We may also arrange for additional payment offices, and may cancel or change these offices, including our use of the trustee’s corporate trust office. These offices are called paying agents. We may also choose to act as our own paying agent. We must notify the trustee of changes in the paying agent for any particular series of debt securities.
Notices
We and the trustee will send notices only to direct holders, using their addresses as listed in the trustee’s records.
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Regardless of who acts as paying agent, all money that we pay to a paying agent that remains unclaimed at the end of two years after the amount is due to direct holders will be repaid to the applicable Stellantis debt issuer or guarantor, as the case may be. After that two-year period, you may look only to the applicable Stellantis debt issuer or guarantor for payment and not to the trustee, any other paying agent or anyone else.
Regarding the Trustee
The Bank of New York Mellon will act as the trustee under the indentures. Stellantis and some of its subsidiaries maintain ordinary banking relations with the trustee under the indentures and affiliates of the trustee in the ordinary course of business.
If an event of default occurs, or an event occurs that would be an event of default if the requirements for giving default notice or the default having to exist for a specific period of time were disregarded, the trustee may, in the circumstances set out in Section 310 of the Trust Indenture Act of 1939 (the “Trust Indenture Act”), thereafter be considered to have a conflicting interest with respect to the debt securities or the applicable indenture for purposes of the Trust Indenture Act. In that case, the trustee may be required to resign as trustee under the applicable indenture and we would be required to appoint a successor trustee.
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DESCRIPTION OF COMMON SHARES
A description of our common shares can be found under the headings “Articles of Association and Information on Stellantis Shares” in the 2025 Annual Report and in Exhibit 2.1 to the 2025 Annual Report, which descriptions are incorporated by reference herein.
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CLEARANCE AND SETTLEMENT
Securities we issue may be held through one or more international and domestic clearing systems. The principal clearing systems we will use are the book-entry systems operated by The Depository Trust Company (“DTC”) in the United States, Clearstream Banking, société anonyme, in Luxembourg (“Clearstream”) and Euroclear Bank S.A./N.V. in Brussels, Belgium (“Euroclear”). These systems have established electronic securities and payment transfer, processing, depositary and custodial links among themselves and others, either directly or through custodians and depositaries. These links allow securities to be issued, held and transferred among the clearing systems without the physical transfer of certificates.
The policies of DTC, Clearstream and Euroclear will govern payments, transfers, exchange and other matters relating to the investor’s interest in securities held by them. This is also true for any other clearance system that may be named in a prospectus supplement.
We have no responsibility for any aspect of the actions of DTC, Clearstream or Euroclear or any of their direct or indirect participants. We have no responsibility for any aspect of the records kept by DTC, Clearstream or Euroclear or any of their direct or indirect participants. We also do not supervise these systems in any way. This is also true for any other clearing system indicated in a prospectus supplement.
DTC, Clearstream and Euroclear and their participants perform these clearance and settlement functions under agreements they have made with one another or with their customers. You should be aware that they are not obligated to perform these procedures and may modify them or discontinue them at any time.
The description of the clearing systems in this section reflects our understanding of the rules and procedures of DTC, Clearstream and Euroclear as they are currently in effect. Those systems could change their rules and procedures at any time.
Considerations Relating to DTC
DTC has informed us as follows:
DTC is a limited-purpose trust company organized under the New York Banking Law, a “banking organization” within the meaning of the New York Banking Law, a member of the Federal Reserve System, a “clearing corporation” within the meaning of the New York Uniform Commercial Code and a “clearing agency” registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds securities that DTC’s participants (“direct participants”) deposit with DTC. DTC also facilitates the post-trade settlement among direct participants of sales and other securities transactions in deposited securities through electronic computerized book-entry transfers and pledges between direct participants’ accounts. This eliminates the need for physical movement of securities certificates. Direct participants include both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly owned subsidiary of The Depository Trust & Clearing Corporation (“DTCC”). DTCC is the holding company for DTC, National Securities Clearing Corporation and Fixed Income Clearing Corporation, all of which are registered clearing agencies. DTCC is owned by the users of its regulated subsidiaries. Access to the DTC system is also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies and clearing corporations that clear through or maintain a custodial relationship with a DTC participant, either directly or indirectly. The DTC rules applicable to its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or through direct participants, which will receive a credit for the securities on DTC’s records. The ownership interest of each actual purchaser of each security is in turn to be recorded on the direct and indirect participants’ records, including Euroclear and Clearstream. Beneficial owners will not receive written confirmation from DTC of their purchases. Beneficial owners are expected to receive written confirmations providing details of the transaction, as well as periodic statements of their holdings, from the direct or indirect participant through which the beneficial owner entered into the transaction. Transfers of ownership interests in the securities are to be accomplished by entries made on the books of direct or indirect participants acting on behalf of beneficial owners. Beneficial owners will not receive certificates representing their ownership interests in the securities, except in the limited circumstances described above under “Description of Debt Securities and Guarantees—Form of Debt Securities”.
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To facilitate subsequent transfers, all securities deposited by direct participants with DTC will be registered in the name of DTC’s partnership nominee, Cede & Co., or such other name as may be requested by an authorized representative of DTC. The deposit of securities with DTC and their registration in the name of Cede & Co. or such other nominee will not effect any change in beneficial ownership of the securities. DTC has no knowledge of the actual beneficial owners of the securities; DTC’s records reflect only the identity of the direct participants to whose accounts such securities are credited, which may or may not be the beneficial owners. The direct and indirect participants are responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to its direct participants, by its direct participants to indirect participants, and by its direct and indirect participants to beneficial owners of the securities will be governed by arrangements among them respectively, subject to any statutory or regulatory requirements as may be in effect from time to time.
Redemption notices will be sent to DTC. If less than all of the securities within an issue are being redeemed, DTC will determine by lot the amount of the interest of each direct participant in such issue to be redeemed.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will itself consent or vote with respect to the securities unless authorized by a direct participant in accordance with DTC’s MMI procedures. Under its usual procedures, DTC mails an omnibus proxy to us as soon as possible after the record date. The omnibus proxy assigns Cede & Co.’s consenting rights to those direct participants to whose accounts such securities are credited on the record date (identified in a listing attached to the omnibus proxy).
Redemption proceeds and distribution payments on the securities will be made to Cede & Co., or such other nominee as may be requested by an authorized representative of DTC. DTC’s practice is to credit direct participants’ accounts upon DTC’s receipt of funds and corresponding detail information from us or our agent, on the relevant payment date in accordance with their respective holdings shown on DTC’s records. Payments by participants to beneficial owners will be governed by standing instructions and customary practices, as is the case with securities held for the accounts of customers in bearer form or registered in “street name”, and will be the responsibility of such participants and not of DTC, the relevant agent or us, subject to any statutory or regulatory requirements as may be in effect from time to time. Payment of redemption proceeds and distributions to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is the responsibility of us or our agent, disbursements of such payments to direct participants are the responsibility of DTC, and disbursements of such payments to the beneficial owners are the responsibility of direct and indirect participants.
The information in this section concerning DTC and DTC’s book-entry system has been obtained from sources that we believe to be accurate, but we assume no responsibility for the accuracy thereof.
Considerations Relating to Euroclear and Clearstream
Euroclear and Clearstream are securities clearance systems in Europe. Both systems clear and settle securities transactions between their participants through electronic, book-entry delivery of securities against payment.
Euroclear and Clearstream may be depositaries for a global security. In addition, if DTC is the depositary for a global security, Euroclear and Clearstream may hold interests in the global security as participants in DTC.
As long as any global security is held by Euroclear or Clearstream, as depositary, you may hold an interest in the global security only through an organization that participates, directly or indirectly, in Euroclear or Clearstream. If Euroclear or Clearstream is the depositary for a global security and there is no depositary in the United States, you will not be able to hold interests in that global security through any securities clearance system in the United States.
Transactions between participants in Euroclear or Clearstream, on the one hand, and participants in DTC, on the other hand, when DTC is the depositary, would also be subject to DTC’s rules and procedures.
Special Timing Considerations
You should be aware that investors will only be able to make and receive deliveries, payments and other communications involving the securities through Clearstream and Euroclear on days when those systems are open for
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business. Those systems may not be open for business on days when banks, brokers and other institutions are open for business in the United States.
In addition, because of time-zone differences, there may be problems with completing transactions involving Clearstream and Euroclear on the same business day as in the United States. U.S. investors who wish to transfer their interests in the securities, or to receive or make a payment or delivery of the securities, on a particular day, may find that the transactions will not be performed until the next business day in Luxembourg or Brussels, depending on whether Clearstream or Euroclear is used.
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TAXATION
United States Taxation of Debt Securities
This section describes the material United States federal income tax consequences of owning debt securities we may offer pursuant to this prospectus. It applies to you only if you acquire the offered debt securities in an offering or offerings contemplated by this prospectus and you hold the offered debt securities as capital assets for tax purposes. This section is the opinion of Sullivan & Cromwell, LLP, U.S. counsel to the Stellantis debt issuers. This section addresses only United States federal income taxation and does not discuss all of the tax consequences that may be relevant to you in light of your individual circumstances, including foreign, state or local tax consequences, and tax consequences arising under the Medicare contribution tax on net investment income or the alternative minimum tax. This section does not apply to you if you are a member of a special class of holders subject to special rules, including:
•a dealer in securities or currencies,
•a regulated investment company,
•a trader in securities that elects to use a mark-to-market method of accounting for its securities holdings,
•a tax-exempt organization,
•a bank, financial institution, or life insurance company,
•a person that owns debt securities as part of a straddle or a hedging, conversion or other risk reduction transaction (including, in the case of debt securities, debt securities owned as a hedge, or that are hedged, against interest rate or currency risks),
•a person that purchases or sells debt securities as part of a wash sale for tax purposes, or
•a United States holder (as defined below) whose functional currency is not the U.S. dollar.
This discussion deals only with debt securities that are due to mature 30 years or less from the date on which they are issued. The United States federal income tax consequences of owning debt securities that are due to mature more than 30 years from their date of issue will be discussed in the applicable prospectus supplement.
This section is based on the Code, its legislative history, existing and proposed regulations under the Code, published rulings and court decisions, as well as the relevant provisions of the present double taxation treaty between The Netherlands and the United States (the “Treaty”), all as currently in effect. These authorities are subject to change, possibly on a retroactive basis.
You are a United States holder if you are a beneficial owner of an offered security and you are for United States federal income tax purposes:
•a citizen or resident of the United States,
•a domestic corporation,
•an estate whose income is subject to United States federal income tax regardless of its source, or
•a trust if a United States court can exercise primary supervision over the trust’s administration and one or more United States persons are authorized to control all substantial decisions of the trust.
You are a non-United States holder if you are the beneficial owner of an offered security and are, for United States federal income tax purposes:
•a nonresident alien individual;
•a foreign corporation; or
•an estate or trust that in either case is not subject to United States federal income tax on a net income basis on income or gain from the security.
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If an entity or arrangement that is treated as a partnership for U.S. federal income tax purposes owns the offered debt securities, the United States federal income tax treatment of a partner will generally depend on the status of the partner and the tax treatment of the partnership. A partner in a partnership holding the offered securities should consult its tax advisor with regard to the United States federal income tax treatment of an investment in the offered securities.
Information with Respect to Foreign Financial Assets
If you own “specified foreign financial assets” with an aggregate value in excess of $50,000 (and in some circumstances, a higher threshold), you may be required to file an information report with respect to such assets with your tax returns. “Specified foreign financial assets” may include financial accounts maintained by non-U.S. financial institutions, as well as the following, but only if they are held for investment and not held in accounts maintained by financial institutions: (i) stocks and securities issued by non-United States persons, (ii) financial instruments and contracts held for investment that have non-United States issuers or counterparties and (iii) interests in foreign entities. You are urged to consult your tax advisors regarding the application of this filing requirement to your ownership of the debt securities.
| This discussion is a general summary and does not cover all the tax matters that may be applicable to each individual investor in debt securities. You should consult your own tax advisor regarding the United States federal, state and local and other tax consequences of owning and disposing of offered debt securities in your particular circumstances. | ||
United States Holders
If you are not a United States holder, this section does not apply to you, and you should see the sections entitled “Non-United States Holders” below for information that may apply to you.
Payments of Interest
Except as described below in the case of interest on a “discount debt security” that is not “qualified stated interest”, each as defined later under “Original Issue Discount—General”, you will be taxed on any interest and any additional amounts payable on your debt security, whether payable in U.S. dollars or a foreign currency, including a composite currency or basket of currencies other than U.S. dollars, as ordinary income at the time you receive the interest or when it accrues, depending on your method of accounting for tax purposes.
Interest paid on, and original issue discount (as described below under “—Original Issue Discount”), if any, accrued with respect to the debt securities that are issued by Stellantis Finance constitutes income from sources within the United States.
Interest paid by us on the debt securities issued by Stellantis and original issue discount, if any, accrued with respect to such debt securities (as described below under “—Original Issue Discount”) and any additional amounts paid with respect to withholding tax on such debt securities, including withholding tax on payments of such additional amounts, are income from sources outside the United States and will, depending on your circumstances, be either “passive” or “general” income for purposes of the rules regarding the foreign tax credit allowable to a United States holder.
Foreign Currency Debt Securities: Cash Basis Taxpayers. If you are a taxpayer that uses the cash receipts and disbursements method of accounting for tax purposes and you receive an interest payment that is denominated in, or determined by reference to, a foreign currency, you would recognize income equal to the U.S. dollar value of the interest payment, based on the exchange rate in effect on the date of receipt, regardless of whether you actually convert the payment into U.S. dollars.
Foreign Currency Debt Securities: Accrual Basis Taxpayers. If you are a taxpayer that uses an accrual method of accounting for tax purposes, you may determine the amount of income that you recognize with respect to an interest payment denominated in, or determined by reference to, a foreign currency by using one of two methods. Under the first method, you would determine the amount of income accrued based on the average exchange rate in effect
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during the interest accrual period or, with respect to an accrual period that spans two taxable years, that part of the period within the taxable year.
If you elect the second method, you would determine the amount of income accrued on the basis of the exchange rate in effect on the last day of the accrual period, or, in the case of an accrual period that spans two taxable years, the exchange rate in effect on the last day of the part of the period within the taxable year. Additionally, under this second method, if you receive a payment of interest within five business days of the last day of your accrual period or taxable year, you may instead translate the interest accrued into U.S. dollars at the exchange rate in effect on the day that you actually receive the interest payment. If you elect the second method, it would apply to all debt instruments that you hold at the beginning of the first taxable year to which the election applies and to all debt instruments that you subsequently acquire. You may not revoke this election without the consent of the IRS.
When you actually receive an interest payment, including a payment attributable to accrued but unpaid interest upon the sale or retirement of your debt security, denominated in, or determined by reference to, a foreign currency for which you accrued an amount of income, you will recognize ordinary income or loss measured by the difference, if any, between the U.S. dollar amount that you accrued in interest income under the rules described above and the U.S. dollar value of the foreign currency on the date of receipt based on the exchange rate in effect on such date, regardless of whether you actually convert the payment into U.S. dollars.
Original Issue Discount
General. If you own a debt security, other than a short-term debt security with a term of one year or less, it would be treated as a discount debt security issued at an original issue discount if the amount by which the debt security’s stated redemption price at maturity exceeds its issue price is equal to or more than a de minimis amount. Generally, a debt security’s issue price will be the first price at which a substantial amount of debt securities included in the issue of which the debt security is a part is sold to persons other than bond houses, brokers, or similar persons or organizations acting in the capacity of underwriters, placement agents, or wholesalers. A debt security’s stated redemption price at maturity is the total of all payments provided by the debt security that are not payments of qualified stated interest. Generally, an interest payment on a debt security is qualified stated interest if it is one of a series of stated interest payments on a debt security that are unconditionally payable at least annually at a single fixed rate, with certain exceptions for lower rates paid during some periods applied to the outstanding principal amount of the debt security. There are special rules for variable rate debt securities that are discussed under “—Variable Rate Debt Securities”.
In general, your debt security is not a discount debt security if the amount by which its stated redemption price at maturity exceeds its issue price is less than the de minimis amount of ¼ of 1 percent of its stated redemption price at maturity multiplied by the number of complete years to its maturity. Your debt security would have de minimis original issue discount if the amount of the excess is less than the de minimis amount. If your debt security has de minimis original issue discount, you would include the de minimis amount in income as stated principal payments are made on the debt security, unless you make the election described below under “—Election to Treat All Interest as Original Issue Discount”. You can determine the includible amount with respect to each such payment by multiplying the total amount of your debt security’s de minimis original issue discount by a fraction equal to:
•the amount of the principal payment made
divided by:
•the stated principal amount of the debt security.
Generally, if your discount debt security matures more than one year from its date of issue, you would include original issue discount, or OID, in income before you receive cash attributable to that income. The amount of OID that you would include in income is calculated using a constant-yield method, and generally you would include increasingly greater amounts of OID in income over the life of your debt security. More specifically, you can calculate the amount of OID that you would include in income by adding the daily portions of OID with respect to your discount debt security for each day during the taxable year or portion of the taxable year that you hold your discount debt security. You can determine the daily portion by allocating to each day in any “accrual period” a pro rata portion of the OID allocable to that accrual period. You may select an accrual period of any length with respect to your discount debt security and you
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may vary the length of each accrual period over the term of your discount debt security. However, no accrual period may be longer than one year and each scheduled payment of interest or principal on the discount debt security must occur on either the first or final day of an accrual period.
You can determine the amount of OID allocable to an accrual period by:
•multiplying your discount debt security’s adjusted issue price at the beginning of the accrual period by your debt security’s yield to maturity, and then
•subtracting from this figure the sum of the payments of qualified stated interest on your debt security allocable to the accrual period.
You must determine the discount debt security’s yield to maturity on the basis of compounding at the close of each accrual period and adjusting for the length of each accrual period. Further, you determine your discount debt security’s adjusted issue price at the beginning of any accrual period by:
•adding your discount debt security’s issue price and any accrued OID for each prior accrual period, and then
•subtracting any payments previously made on your discount debt security that were not qualified stated interest payments.
If an interval between payments of qualified stated interest on your discount debt security contains more than one accrual period, then, when you determine the amount of OID allocable to an accrual period, you would allocate the amount of qualified stated interest payable at the end of the interval, including any qualified stated interest that is payable on the first day of the accrual period immediately following the interval, pro rata to each accrual period in the interval based on their relative lengths. In addition, you would increase the adjusted issue price at the beginning of each accrual period in the interval by the amount of any qualified stated interest that has accrued prior to the first day of the accrual period but that is not payable until the end of the interval. You may compute the amount of OID allocable to an initial short accrual period by using any reasonable method if all other accrual periods, other than a final short accrual period, are of equal length.
The amount of OID allocable to the final accrual period is equal to the difference between:
•the amount payable at the maturity of your debt security other than any payment of qualified stated interest, and
•your debt security’s adjusted issue price as of the beginning of the final accrual period.
Acquisition Premium. If you purchase your debt security for an amount that is less than or equal to the sum of all amounts other than qualified stated interest payable on your debt security after the purchase date but is greater than the amount of your debt security’s adjusted issue price, as determined above under “—General”, the excess is acquisition premium. If you do not make the election described below under “—Election to Treat All Interest as Original Issue Discount”, then you would reduce the daily portions of OID by a fraction equal to:
•the excess of your adjusted basis in the debt security immediately after purchase over the adjusted issue price of the debt security
divided by:
•the excess of the sum of all amounts payable, other than qualified stated interest, on the debt security after the purchase date over the debt security’s adjusted issue price.
Pre-Issuance Accrued Interest. An election may be made to decrease the issue price of your debt security by the amount of pre-issuance accrued interest if:
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•a portion of the initial purchase price of your debt security is attributable to pre-issuance accrued interest;
•the first stated interest payment on your debt security is to be made within one year of your debt security’s issue date; and
•the payment would equal or exceed the amount of pre-issuance accrued interest.
If this election is made, a portion of the first stated interest payment would be treated as a return of the excluded pre-issuance accrued interest and not as an amount payable on your debt security.
Debt Securities Subject to Contingencies Including Optional Redemption. Your debt security is subject to a contingency if it provides for an alternative payment schedule or schedules applicable upon the occurrence of a contingency or contingencies, other than a remote or incidental contingency, whether such contingency relates to payments of interest or of principal. In such a case, you would determine the yield and maturity of your debt security by assuming that the payments would be made according to the payment schedule most likely to occur if:
•the timing and amounts of the payments that comprise each payment schedule are known as of the issue date; and
•one of such schedules is significantly more likely than not to occur.
If there is no single payment schedule that is significantly more likely than not to occur, other than because of a mandatory sinking fund, you would include income on your debt security in accordance with the general rules that govern contingent payment obligations. These rules will be discussed in the applicable prospectus supplement.
Notwithstanding the general rules for determining yield and maturity, if your debt security is subject to contingencies, and either you or we have an unconditional option or options that, if exercised, would require payments to be made on the debt security under an alternative payment schedule or schedules, then:
•in the case of an option or options that we may exercise, we would be deemed to exercise or not exercise an option or combination of options in the manner that minimizes the yield on your debt security; and
•in the case of an option or options that you may exercise, you would be deemed to exercise or not exercise an option or combination of options in the manner that maximizes the yield on your debt security.
If both you and we hold options described in the preceding sentence, those rules would apply to each option in the order in which they may be exercised. You would determine the yield on your debt security for the purposes of those calculations by using any date on which your debt security may be redeemed or repurchased as the maturity date and the amount payable on such date in accordance with the terms of your debt security as the principal amount payable at maturity.
If a contingency, including the exercise of an option, actually occurs or does not occur contrary to an assumption made according to the above rules then, except to the extent that a portion of your debt security is repaid as a result of this change in circumstances and solely to determine the amount and accrual of OID, you would redetermine the yield and maturity of your debt security by treating your debt security as having been retired and reissued on the date of the change in circumstances for an amount equal to your debt security’s adjusted issue price on that date.
Election to Treat All Interest as Original Issue Discount. You may elect to include in gross income all interest that accrues on your debt security using the constant-yield method described above under “—General”, with the modifications described below. For purposes of this election, interest will include stated interest, OID, de minimis original issue discount, market discount, de minimis market discount and unstated interest, as adjusted by any amortizable bond premium, described below under “—Debt Securities Purchased at a Premium” or acquisition premium.
If you make this election for your debt security, then, when you apply the constant-yield method:
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•the issue price of your debt security would equal your cost,
•the issue date of your debt security would be the date you acquired it, and
•no payments on your debt security would be treated as payments of qualified stated interest.
Generally, this election will apply only to the debt security for which you make it; however, if the debt security has amortizable bond premium, you would be deemed to have made an election to apply amortizable bond premium against interest for all debt instruments with amortizable bond premium, other than debt instruments the interest on which is excludible from gross income, that you hold as of the beginning of the taxable year to which the election applies or any taxable year thereafter. Additionally, if you make this election for a market discount debt security, you would be treated as having made the election discussed below under “—Market Discount” to include market discount in income currently over the life of all debt instruments having market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke any election to apply the constant-yield method to all interest on a debt security or the deemed elections with respect to amortizable bond premium or market discount debt securities without the consent of the IRS.
Variable Rate Debt Securities. Your debt security would be a variable rate debt security if:
•your debt security’s issue price does not exceed the total noncontingent principal payments by more than the lesser of:
1..015 multiplied by the product of the total non-contingent principal payments and the number of complete years to maturity from the issue date, or
2.15 percent of the total non-contingent principal payments; and
•your debt security provides for stated interest, compounded or paid at least annually, only at:
1.one or more qualified floating rates,
2.a single fixed rate and one or more qualified floating rates,
3.a single objective rate, or
4.a single fixed rate and a single objective rate that is a qualified inverse floating rate; and
•the value of any floating rate on any date during the term of your debt security is set no earlier than three months prior to the first day on which that value is in effect and no later than one year following that first day.
Your debt security would have a variable rate that is a qualified floating rate if:
•variations in the value of the rate can reasonably be expected to measure contemporaneous variations in the cost of newly borrowed funds in the currency in which your debt security is denominated; or
•the rate is equal to such a rate either:
1.multiplied by a fixed multiple that is greater than 0.65 but not more than 1.35 or
2.multiplied by a fixed multiple greater than 0.65 but not more than 1.35, and then increased or decreased by a fixed rate.
If your debt security provides for two or more qualified floating rates that are within 0.25 percentage points of each other on the issue date or can reasonably be expected to have approximately the same values throughout the term of the debt security, the qualified floating rates together constitute a single qualified floating rate.
Your debt security would not have a qualified floating rate, however, if the rate is subject to certain restrictions (including caps, floors, governors, or other similar restrictions) unless such restrictions are caps, floors or governors that are fixed throughout the term of the debt security or such restrictions are not reasonably expected to significantly affect the yield on the debt security.
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Your debt security would have a variable rate that is a single objective rate if:
•the rate is not a qualified floating rate, and
•the rate is determined using a single, fixed formula that is based on objective financial or economic information that is not within the control of or unique to the circumstances of the issuer or a related party.
Your debt security would not have a variable rate that is an objective rate, however, if it is reasonably expected that the average value of the rate during the first half of your debt security’s term would be either significantly less than or significantly greater than the average value of the rate during the final half of your debt security’s term.
An objective rate as described above is a qualified inverse floating rate if:
•the rate is equal to a fixed rate minus a qualified floating rate and
•the variations in the rate can reasonably be expected to inversely reflect contemporaneous variations in the cost of newly borrowed funds.
Your debt security would also have a single qualified floating rate or an objective rate if interest on your debt security is stated at a fixed rate for an initial period of one year or less followed by either a qualified floating rate or an objective rate for a subsequent period, and either:
•the fixed rate and the qualified floating rate or objective rate have values on the issue date of the debt security that do not differ by more than 0.25 percentage points or
•the value of the qualified floating rate or objective rate is intended to approximate the fixed rate.
In general, if your variable rate debt security provides for stated interest at a single qualified floating rate or objective rate, or one of those rates after a single fixed rate for an initial period, all stated interest on your debt security is qualified stated interest. In this case, the amount of OID, if any, is determined by using, in the case of a qualified floating rate or qualified inverse floating rate, the value as of the issue date of the qualified floating rate or qualified inverse floating rate, or, for any other objective rate, a fixed rate that reflects the yield reasonably expected for your debt security.
If your variable rate debt security does not provide for stated interest at a single qualified floating rate or a single objective rate, and also does not provide for interest payable at a fixed rate other than a single fixed rate for an initial period, you generally would determine the interest and OID accruals on your debt security by:
•determining a fixed rate substitute for each variable rate provided under your variable rate debt security,
•constructing the equivalent fixed rate debt instrument, using the fixed rate substitute described above,
•determining the amount of qualified stated interest and OID with respect to the equivalent fixed rate debt instrument, and
•adjusting for actual variable rates during the applicable accrual period.
When you determine the fixed rate substitute for each variable rate provided under the variable rate debt security, you generally will use the value of each variable rate as of the issue date or, for an objective rate that is not a qualified inverse floating rate, a rate that reflects the reasonably expected yield on your debt security.
If your variable rate debt security provides for stated interest either at one or more qualified floating rates or at a qualified inverse floating rate, and also provides for stated interest at a single fixed rate other than at a single fixed rate for an initial period, you generally would determine interest and OID accruals by using the method described in the previous paragraph. However, your variable rate debt security would be treated, for purposes of the first three steps of the determination, as if your debt security had provided for a qualified floating rate, or a qualified inverse floating rate,
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rather than the fixed rate. The qualified floating rate, or qualified inverse floating rate, that replaces the fixed rate must be such that the fair market value of your variable rate debt security as of the issue date approximates the fair market value of an otherwise identical debt instrument that provides for the qualified floating rate, or qualified inverse floating rate, rather than the fixed rate.
Short-Term Debt Securities. In general, if you are an individual or other cash basis United States holder of a short-term debt security, you are not required to accrue OID, as specially defined below for the purposes of this paragraph, for United States federal income tax purposes unless you elect to do so (although it is possible that you may be required to include any stated interest in income as you receive it). If you are an accrual basis taxpayer, a taxpayer in a special class, including, but not limited to, a regulated investment company, common trust fund, or a certain type of pass-through entity, or a cash basis taxpayer who so elects, you would be required to accrue OID on short-term debt securities either on a straight-line basis or under the constant-yield method, based on daily compounding. If you are not required and do not elect to include OID in income currently, any gain you realize on the sale or retirement of your short-term debt security would be ordinary income to the extent of the accrued OID, which would be determined on a straight-line basis unless you make an election to accrue the OID under the constant-yield method, through the date of sale or retirement. However, if you are not required and do not elect to accrue OID on your short-term debt securities, you would be required to defer deductions for interest on borrowings allocable to your short-term debt securities in an amount not exceeding the deferred income until the deferred income is realized.
When you determine the amount of OID subject to these rules, you must include all interest payments on your short-term debt security, including stated interest, in your short-term debt security’s stated redemption price at maturity.
Foreign Currency Discount Debt Securities. If your discount debt security is denominated in, or determined by reference to, a foreign currency, you would determine OID for any accrual period on your discount debt security in the foreign currency and then translate the amount of OID into U.S. dollars in the same manner as stated interest accrued by an accrual basis United States holder, as described under “—Payments of Interest”. You may recognize ordinary income or loss when you receive an amount attributable to OID in connection with a payment of interest or the sale or retirement of your debt security.
Market Discount
You would be treated as if you purchased your debt security, other than a short-term debt security, at a market discount, and your debt security will be a market discount debt security if:
•you purchase your debt security for less than its issue price as determined above under “—Original Issue Discount—General”; and
•the difference between the debt security’s stated redemption price at maturity or, in the case of a discount debt security, the debt security’s revised issue price, and the price you paid for your debt security is equal to or greater than ¼ of 1 percent of your debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity. To determine the revised issue price of your debt security for these purposes, you generally add any OID that has accrued on your debt security to its issue price.
If your debt security’s stated redemption price at maturity or, in the case of a discount debt security, its “revised issue price”, does not exceed the price you paid for the debt security by ¼ of 1 percent of the debt security’s stated redemption price at maturity multiplied by the number of complete years to the debt security’s maturity, the excess constitutes de minimis market discount, and the rules discussed below are not applicable to you.
You must treat any gain you recognize on the maturity or disposition of your market discount debt security as ordinary income to the extent of the accrued market discount on your debt security. Alternatively, you may elect to include market discount in income currently over the life of your debt security. If you make this election, it would apply to all debt instruments with market discount that you acquire on or after the first day of the first taxable year to which the election applies. You may not revoke this election without the consent of the IRS. If you own a market discount debt security and do not make this election, you would generally be required to defer deductions for interest on borrowings
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allocable to your debt security in an amount not exceeding the accrued market discount on your debt security until the maturity or disposition of your debt security.
If you own a market discount debt security, the market discount would accrue on a straight-line basis unless an election is made to accrue market discount using a constant-yield method. If you make this election, it would apply only to the debt security with respect to which it is made and you may not revoke it. You would, however, not include accrued market discount in income unless you elect to do so as described above.
Debt Securities Purchased at a Premium
If you purchase your debt security for an amount in excess of its principal amount (or, in the case of a discount debt security, in excess of the sum of all amounts payable on the debt security after the acquisition date (other than payments of qualified stated interest)), you may elect to treat the excess as amortizable bond premium. If you make this election, you would reduce the amount required to be included in your income each accrual period with respect to interest on your debt security by the amount of amortizable bond premium allocable to that accrual period, based on your debt security’s yield to maturity.
If the amortizable bond premium allocable to an accrual period exceeds your interest income from your debt security for such accrual period, such excess is first allowed as a deduction to the extent of interest included in your income in respect of the debt security in previous accrual periods and is then carried forward to your next accrual period. If the amortizable bond premium allocable and carried forward to the accrual period in which your debt security is sold, retired or otherwise disposed of exceeds your interest income for such accrual period, you would be allowed an ordinary deduction equal to such excess.
If your debt security is denominated in, or determined by reference to, a foreign currency, you would compute your amortizable bond premium in units of the foreign currency and your amortizable bond premium would reduce your interest income in units of the foreign currency. Gain or loss recognized that is attributable to changes in exchange rates between the time your amortized bond premium offsets interest income and the time of the acquisition of your debt security is generally taxable as ordinary income or loss.
If you make an election to amortize bond premium, it would apply to all debt instruments, other than debt instruments the interest on which is excludible from gross income, that you hold at the beginning of the first taxable year to which the election applies or that you thereafter acquire, and you may not revoke it without the consent of the IRS. See also “—Original Issue Discount—Election to Treat All Interest as Original Issue Discount”.
Purchase, Sale and Retirement of the Debt Securities
Your tax basis in your debt security will generally be the U.S. dollar cost, as defined below, of your debt security, adjusted by:
•adding any OID or market discount previously included in income with respect to your debt security, and then
•subtracting any payments on your debt security that are not qualified stated interest payments and any amortizable bond premium to the extent that such premium either reduced interest on your debt security or gave rise to a deduction on your debt security.
If you purchase your debt security with foreign currency, the U.S. dollar cost of your debt security would generally be the U.S. dollar value of the purchase price on the date of purchase. However, if you are a cash basis taxpayer, or an accrual basis taxpayer, if you so elect, and your debt security is traded on an established securities market, as defined in the applicable Treasury regulations, the U.S. dollar cost of your debt security would be the U.S. dollar value of the purchase price on the settlement date of your purchase.
You will generally recognize gain or loss on the sale or retirement of your debt security equal to the difference between the amount you realize on the sale or retirement, excluding any amounts attributable to accrued but unpaid interest (which will be treated as interest payments) and your tax basis in your debt security. If your debt security is sold
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or retired for an amount in foreign currency, the amount you realize would be the U.S. dollar value of such amount on the date the debt security is disposed of or retired, except that in the case of a debt security that is traded on an established securities market, as defined in the applicable Treasury regulations, a cash basis taxpayer, or an accrual basis taxpayer that so elects, would determine the amount realized based on the U.S. dollar value of the foreign currency on the settlement date of the sale.
You will recognize capital gain or loss when you sell or retire your debt security, except to the extent:
•described above under “—Original Issue Discount—Short-Term Debt Securities” or “—Market Discount”, or
•attributable to changes in exchange rates as described below.
Capital gain of a non-corporate United States holder is generally taxed at preferential rates where the property is held for more than one year.
You must treat any portion of the gain or loss that you recognize on the sale or retirement of a debt security as ordinary income or loss to the extent attributable to changes in exchange rates. However, you take exchange gain or loss into account only to the extent of the total gain or loss you realize on the transaction.
Exchange of Amounts in Other Than U.S. Dollars
If you receive foreign currency as interest on your debt security or on the sale or retirement of your debt security, your tax basis in the foreign currency would equal its U.S. dollar value when the interest is received or at the time of the sale or retirement. If you purchase foreign currency, you generally would have a tax basis equal to the U.S. dollar value of the foreign currency on the date of your purchase. If you sell or dispose of a foreign currency, including if you use it to purchase a debt security or exchange it for U.S. dollars, any gain or loss recognized generally would be ordinary income or loss.
Non-United States Holders
This subsection describes the tax consequences to non-United States holders of our debt securities. The discussion below does not address the tax consequences to a non-United States holder of an investment in a debt security that references directly or indirectly the performance of United States equities. The tax treatment of any such debt securities will be discussed in the applicable prospectus supplement.
If you are a United States holder, this section does not apply to you.
Interest on the Debt Securities – Stellantis
Under present United States federal income tax law, and subject to the discussion of backup withholding below, if you are a non-United States holder of a debt security issued by Stellantis, interest (including OID) on your debt security is exempt from United States federal income tax, including withholding tax, whether or not you are engaged in a trade or business in the United States, unless:
•you are an insurance company carrying on a United States insurance business to which the interest is attributable, within the meaning of the Code, or
•you both
◦have an office or other fixed place of business in the United States to which the interest is attributable, and
◦derive the interest in the active conduct of a banking, financing or similar business within the United States, or are a corporation with a principal business of trading in stocks and securities for its own account.
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Interest on the Debt Securities – Stellantis Finance
This discussion applies to debt securities issued by Stellantis Finance and assumes that the debt security is not subject to the rules of Section 871(h)(4)(A) of the Internal Revenue Code, relating to interest payments that are determined by reference to the income, profits, changes in the value of property or other attributes of the debtor or a related party.
Under present United States federal income tax law, and subject to the discussions of FATCA withholding and backup withholding below, interest (including OID) on your debt security that is not effectively connected with your conduct of a trade or business in the United States will generally be exempt from United States federal income and withholding tax under the “portfolio interest exemption,” provided that (i) you do not, actually or constructively, own stock possessing 10% or more of the total voting power of all classes of stock of Stellantis Finance entitled to vote, (ii) you are not a controlled foreign corporation that is related to Stellantis Finance, actually or constructively, and (iii) either (a) you provide to the applicable withholding agent an IRS Form W-8BEN or W-8BEN-E (or other applicable form), signed under penalties of perjury, that includes your name and address and that certifies your non-United States status in compliance with applicable law and regulations, or (b) a securities clearing organization, bank or other financial institution that holds customers’ securities in the ordinary course of its trade or business provides a statement to the applicable withholding agent under penalties of perjury on which it certifies that an applicable IRS Form W-8BEN or W-8BEN-E (or other applicable form) has been received by it from you or a qualifying intermediary and furnishes a copy to the applicable withholding agent. This certification requirement may be satisfied with other documentary evidence in the case of a debt security held in an offshore account or through certain foreign intermediaries. The applicable withholding agent for purposes of the certification requirement described above is generally the last U.S. payor (or a non-U.S. payor that is a qualified intermediary or a U.S. branch of a foreign person) in the chain of payment before payment to you.
If you cannot satisfy the requirements of the portfolio interest exemption described above, then payments of interest (including OID) on debt securities issued by Stellantis Finance made to you generally will be subject to United States federal withholding tax at the rate of 30%, unless either (i) you provide the applicable withholding agent with a properly executed IRS Form W-8BEN or W-8BEN-E establishing an exemption from or reduction of the withholding tax under the benefit of an applicable income tax treaty or (ii) the interest is effectively connected with your conduct of a trade or business in the United States and you provide an appropriate statement to that effect on a properly completed and duly executed IRS Form W-8ECI or applicable successor form.
If you are engaged in a trade or business in the United States and interest (including OID) on a debt security is effectively connected with the conduct of that trade or business, you will be subject to United States federal income tax on such interest on a net income basis in generally the same manner as a United States holder, unless an applicable income tax treaty provides otherwise. If you are a non-United States holder that is treated as a foreign corporation for United States federal income tax purposes, you may also be subject to a branch profits tax at a 30% rate (or lower applicable treaty rate) on your effectively connected earnings and profits, subject to adjustments.
Purchase, Sale, Retirement and Other Disposition of the Debt Securities
Subject to the discussion of backup withholding below, you generally would not be subject to United States federal income tax on gain realized on the sale, exchange or retirement of a debt security (other than any amount representing accrued but unpaid interest or OID on the debt security, which will be treated as interest and will generally be subject to the rules discussed above under “Interest on the Debt Securities”) unless:
•the gain is effectively connected with your conduct of a trade or business in the United States, or
•you are an individual who was present in the United States for 183 or more days during the taxable year in which the gain is realized and certain other conditions exist.
If you are described in the second bullet point above, you generally will be subject to United States federal income tax at a flat rate of 30% (unless a lower treaty rate applies) on your gain from the disposition, which may be offset by certain United States-source capital losses. If you are described in the first bullet point above, you will be subject to United States federal income tax on such gain on a net income basis in generally the same manner as a United
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States holder, unless an applicable income tax treaty provides otherwise. If you are a non-United States holder that is treated as a foreign corporation for United States federal income tax purposes, you may also be subject to a branch profits tax at a 30% rate (or lower applicable treaty rate) on your effectively connected earnings and profits, subject to adjustments.
Estate Tax
For purposes of the United States federal estate tax, debt securities issued by Stellantis will be treated as situated outside the United States and will not be includible in the gross estate of a holder who is neither a citizen nor a resident of the United States at the time of death.
A debt security issued by Stellantis Finance held by an individual who at death is not a citizen or resident of the United States would not be includible in the individual’s gross estate for United States federal estate tax purposes if:
•the decedent did not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Stellantis Finance entitled to vote at the time of death, and
•the income on the debt security would not have been effectively connected with a United States trade or business of the decedent at the same time.
Treasury Regulations Requiring Disclosure of Reportable Transactions
Treasury regulations require United States taxpayers to report certain transactions that give rise to a loss in excess of certain thresholds. Under these regulations, if the debt securities are denominated in a foreign currency, a United States holder (or a non-United States holder that holds the debt securities in connection with a U.S. trade or business) that recognizes a loss with respect to the debt securities that is characterized as an ordinary loss due to changes in currency exchange rates (under any of the rules discussed above) would be required to report the loss on IRS Form 8886 (Reportable Transaction Statement) if the loss exceeds the thresholds set forth in the regulations. For individuals and trusts, this loss threshold is $50,000 in any single taxable year. For other types of taxpayers and other types of losses, the thresholds are higher. You should consult with your tax advisor regarding any tax filing and reporting obligations that may apply in connection with acquiring, owning and disposing of debt securities.
Foreign Account Tax Compliance Withholding
In the case of debt securities issued by Stellantis Finance, a 30% withholding tax may be imposed under FATCA on certain payments to you or to certain foreign financial institutions, investment funds and other non-U.S. persons receiving payments on your behalf if you or such persons fail to comply with certain information reporting requirements. Payments of interest that you receive in respect of the debt securities could be affected by this withholding if you are subject to the FATCA information reporting requirements and fail to comply with them or if you hold debt securities through a non-U.S. person (e.g., a foreign bank or broker) that fails to comply with these requirements (even if payments to you would not otherwise have been subject to FATCA withholding). You should consult your own tax advisors regarding the relevant U.S. law and other official guidance on FATCA withholding.
We will not pay any additional amounts in respect of FATCA withholding, so if this withholding applies, you will receive significantly less than the amount that you would have otherwise received with respect to your debt securities. Depending on your circumstances, you may be entitled to a refund or credit in respect of some or all of this withholding. However, even if you are entitled to have any such withholding refunded, the required procedures could be cumbersome and significantly delay the holder’s receipt of any amounts withheld.
Backup Withholding and Information Reporting
If you are a non-corporate United States holder of a debt security, information reporting requirements, on Internal Revenue Service Form 1099, generally will apply to payments of principal and interest on a debt security within the United States. Information reporting may also apply in respect of any OID that accrues on a debt security. In the case of a debt security issued by Stellantis Finance, the applicable withholding agent will generally be required to
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report to the IRS all payments of principal, any premium and interest on your debt security, and the accrual of OID on a discount debt security (unless you are an exempt recipient).
In addition, the applicable withholding agent will be required to report to the IRS any payment of proceeds of the sale of your debt security before maturity within the United States (unless you are an exempt recipient). Additionally, backup withholding would apply to any such payments, including payments of OID, if you fail to provide an accurate taxpayer identification number, or (in the case of interest payments) you are notified by the IRS that you have failed to report all interest and dividends required to be shown on your federal income tax returns.
In general, if you are a Non-United States holder that holds a debt security issued by Stellantis Finance, the applicable withholding agent will be required to report payments of interest on your debt security on IRS Form 1042-S. Payments of principal, premium or interest, including OID, on your debt security would otherwise not be subject to information reporting and backup withholding (whether issued by Stellantis or by Stellantis Finance), provided that the certification requirements described above under “— Non-United States Holders—Interest on the Debt Securities-Stellantis Finance” are satisfied or you otherwise establish an exemption. In addition, payment of the proceeds from the sale of debt securities effected at a United States office of a broker will not be subject to backup withholding and information reporting if you have furnished to the applicable withholding agent an appropriate IRS Form W-8, an acceptable substitute form or other documentation upon which it may rely to treat the payment as made to a non-United States person.
In general, payment of the proceeds from the sale of debt securities effected at a foreign office of a broker will not be subject to information reporting or backup withholding. However, a sale effected at a foreign office of a broker could be subject to information reporting in the same manner as a sale within the United States (and in certain cases may be subject to backup withholding as well) if (i) the broker has certain connections to the United States, (ii) the proceeds or confirmation are sent to the United States or (iii) the sale has certain other specified connections with the United States.
You generally may obtain a refund of any amounts withheld under the backup withholding rules that exceed your income tax liability by filing a refund claim with the IRS.
Dutch Taxation of Debt Securities
This section solely addresses the principal Dutch tax consequences of the acquisition, ownership and disposal of debt securities and does not purport to describe every aspect of taxation that may be relevant to a particular holder. Among other things, this section does not describe any Dutch tax considerations or consequences arising from the Dutch Minimum Tax Act 2024 (the Dutch implementation of Council Directive (EU) 2022/2523 of December 14, 2022 on ensuring a global minimum level of taxation for multinational enterprise groups and large-scale domestic groups in the EU) which may be relevant for a particular holder. Tax matters are complex, and the tax consequences of the offer to a particular holder of debt securities will depend in part on such holder’s circumstances. Accordingly, a holder is urged to consult his own tax advisor for a full understanding of the tax consequences of the offer to him, including the applicability and effect of Dutch tax laws.
Where in this section English terms and expressions are used to refer to Dutch concepts, the meaning to be attributed to such terms and expressions shall be the meaning to be attributed to the equivalent Dutch concepts under Dutch tax law. Where in this section the terms “The Netherlands” and “Dutch” are used, these refer solely to the European part of the Kingdom of the Netherlands. This section assumes that the Stellantis debt issuers and the guarantor are organized, and that their respective businesses will be conducted, in the manner outlined in this prospectus.
This section is based on the tax law of The Netherlands (unpublished case law not included) as it stands at the date of this prospectus. The tax law upon which this section is based is subject to changes, possibly with retroactive effect.
This section does not address the Dutch tax consequences for a holder of offered debt securities who:
(i)is a person who may be deemed an owner of the offered debt securities for Dutch tax purposes pursuant to specific statutory attribution rules in Dutch tax law;
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(ii)is, although in principle subject to Dutch corporation tax, in whole or in part, specifically exempt from that tax in connection with income from the offered debt securities (such as a qualifying pension fund and a tax exempt investment fund (vrijgestelde beleggingsinstelling)), or is an entity that is not tax resident in the Netherlands and that functions in a manner that is comparable to a tax exempt investment fund;
(iii)is an investment institution as defined in the Dutch Corporation Tax Act 1969 ("CITA") or is an entity that is not tax resident in the Netherlands and that functions in a manner that is comparable to an investment institution as defined in the CITA;
(iv)owns the offered debt securities in connection with a membership of a management board or a supervisory board, an employment relationship, a deemed employment relationship or management role;
(v)has a substantial interest in a Stellantis debt issuer or the guarantor, as the case may be, or a deemed substantial interest in a Stellantis debt issuer or the guarantor, as the case may be, for Dutch tax purposes. Generally, a person holds a substantial interest if (a) such person – either alone or, in the case of an individual, together with his partner or any of his relatives by blood or by marriage in the direct line (including foster-children) or of those of his partner for Dutch tax purposes – owns or is deemed to own, directly or indirectly, 5% or more of the shares or of any class of shares of the applicable Stellantis debt issuer or the guarantor, as the case may be, or rights to acquire, directly or indirectly, such an interest in the shares of such Stellantis debt issuer or the guarantor, as the case may be or profit participating certificates relating to 5% or more of the annual profits or to 5% or more of the liquidation proceeds of such Stellantis debt issuer or the guarantor, as the case may be, or (b) such person’s shares, rights to acquire shares or profit participating certificates in the applicable Stellantis debt issuer or the guarantor, as the case may be, are held by him following the application of a non-recognition provision;
(vi)is an entity that is related (gelieerd) to a Stellantis debt issuer or the guarantor within the meaning of the Dutch Withholding Tax Act 2021. An entity is considered related if (i) it has a qualifying interest in a Stellantis debt issuer or the guarantor; (ii) a Stellantis debt issuer or the guarantor has a qualifying interest in that entity; or (iii) a third party has a qualifying interest in both a Stellantis debt issuer or the guarantor and that entity. The term qualifying interest means a directly or indirectly held interest — either by the entity individually or jointly if the holder of the debt securities is part of a qualifying unity (kwalificerende eenheid) — that enables the entity or the qualifying unity to exercise such a decisive influence on a Stellantis debt issuer's or the guarantor's decisions so that it can determine its activities; or
(vii) is for Dutch tax purposes taxable as a corporate entity and resident of Aruba, Curaçao or Sint Maarten.
Withholding tax
All payments under the debt securities, whether made by a Stellantis debt issuer or by the guarantor, may be made free from withholding or deduction of or for any taxes of whatever nature imposed, levied, withheld or assessed by The Netherlands or any political subdivision or taxing authority of or in The Netherlands, except where debt securities are issued under such terms and conditions that such debt securities are capable of being classified as equity of Stellantis for Dutch tax purposes or actually function as equity of Stellantis within the meaning of section 10, paragraph 1, letter d of the CITA.
If the exception applies, Stellantis would generally be required to withhold Dutch dividend withholding tax at a rate of 15 per cent. from payments, other than a repayment of principal, made by it under the debt securities. A holder of debt securities may be entitled to exemptions from, credit for, or reductions or refunds of Dutch dividend withholding tax, depending on the specific circumstances of that holder.
Taxes on income and capital gains
Resident holders of debt securities: individuals
A holder of debt securities who is an individual and resident or deemed to be resident in the Netherlands for purposes of Dutch income tax, and who is engaged or deemed to be engaged in an enterprise or in miscellaneous activities (resultaat uit overige werkzaamheden) is generally subject to income tax at statutory progressive rates with a maximum of 49.5 per cent. on any benefits derived or deemed to be derived from the debt securities, including any capital gains realized on any disposal of the debt securities, where those benefits are attributable to:
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(i)an enterprise from which that individual derives profits, whether as an entrepreneur (ondernemer) or by being co-entitled (medegerechtigde) to the net worth of the enterprise other than as an entrepreneur or shareholder; or
(ii)miscellaneous activities, including activities beyond the scope of active portfolio investment activities (meer dan normaal vermogensbeheer).
Generally, debt securities held by a Dutch resident individual who is not engaged or deemed to be engaged in an enterprise or in miscellaneous activities, or who is so engaged or deemed to be engaged but the debt securities are not attributable to that enterprise or miscellaneous activities, will be subject to annual income tax imposed on a fictitious yield on the fair market value of the debt securities on 1 January of each calendar year under the regime for savings and investments (inkomen uit sparen en beleggen). Irrespective of the actual income or capital gains realized, the annual taxable benefit from such a Dutch resident individual’s assets and liabilities taxed under this regime, including the debt securities, is based on fictitious percentages applied to the fair market value of (i) bank savings, (ii) other assets, including the debt securities, and (iii) liabilities.
Taxation only occurs if and to the extent the sum of the fair market value of bank savings and other assets minus the fair market value of the liabilities exceeds a certain threshold (heffingvrij vermogen). The tax rate under the regime for savings and investments is a flat rate of 36 per cent.
For the calendar year 2026, the fictitious percentages applicable to the first and third categories mentioned above (bank savings and liabilities) have not yet been determined. The fictitious yield percentage applicable to the second category mentioned above (other assets, including the debt securities) is 6 per cent. for the calendar year 2026.
Certain transactions that have the effect of reducing the fictitious yield by shifting assets between the aforementioned categories (i) and (ii) or increasing liabilities in any three months period before and after 1 January will for this purpose be ignored unless the holder of debt securities can demonstrate that such transactions are implemented for other reasons than arbitration between fictitious yield percentages.
In connection with decisions of the Dutch Supreme Court that the regime for savings and investments under specific circumstances may be incompatible with the European Convention on Human Rights, a law entered into force on July 19, 2025, introducing a rebuttal scheme for taxpayers with retroactive effect, partially to January 1, 2017 and partially to January 1, 2023. Taxpayers have the possibility to rebut the applicable fictitious yield if the actual yield (determined in accordance with the specific rules set out in the aforementioned law) realized in a certain year is lower. The mere value increase of assets is also considered a realized yield for the application of the rebuttal scheme. If taxpayers succeed in their rebuttal, taxation under the regime for savings and investments is only due in respect of the actual yield realized in the relevant year. The rebuttal scheme is an interim solution for the period until a new regime for taxation of savings and investments is adopted, which is expected to be as of January 1, 2028. Holders of debt securities are advised to consult their own tax adviser regarding the use of the rebuttal scheme and to ensure that tax is levied in line with the decisions of the Dutch Supreme Court.
Resident holders of debt securities: corporate entities
A holder of debt securities that is an entity or enterprise subject to the CITA and resident or deemed to be resident in the Netherlands is generally subject to corporate income tax at statutory rates up to 25.8 per cent. on any benefits derived or deemed to be derived from the debt securities, including any capital gains realized on their disposal.
Non-resident holders of debt securities: individuals
If a holder of debt securities is an individual who is neither resident nor deemed to be resident in The Netherlands for purposes of Dutch income tax, he will not be subject to Dutch income tax in respect of any benefits derived or deemed to be derived from or in connection with debt securities, except if:
(i)he derives profits from an enterprise, whether as an entrepreneur or pursuant to a co-entitlement to the net value of such enterprise, other than as a shareholder, and such enterprise is carried on, in whole or in part, through a permanent establishment (vaste inrichting) or a permanent representative (vaste vertegenwoordiger) in the Netherlands, to which the debt securities are attributable ; or
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(ii)he derives benefits from miscellaneous activities carried on in the Netherlands in respect of the debt securities, including activities which are beyond the scope of active portfolio investment activities; or
(iii)he is entitled to a share — other than by way of securities — in the profits of an enterprirse, which is effectively managed in the Netherlands and to which the debt securities are attributable.
Under certain specific circumstances, Dutch taxation rights may be restricted pursuant to treaties for the avoidance of double taxation.
Non-resident holders of debt securities: individuals
If a holder of debt securities is a corporate entity, or any entity, including an association, a partnership and a mutual fund, taxable as a corporate entity, which is neither resident nor deemed to be resident in the Netherlands for purposes of Dutch corporation tax, it will not be subject to Dutch corporation tax in respect of any benefits derived or deemed to be derived from or in connection with debt securities, except if:
(i)it derives profits from an enterprise directly which is carried on, in whole or in part, through a permanent establishment or a permanent representative in the Netherlands and to which permanent establishment or permanent representative its debt securities are attributable ; or
(ii)it is entitled to a share — other than by way of securities — in the profits of an enterprirse or a co-entitlement to the net worth of an enterprise, which is effectively managed in the Netherlands and to which the debt securities are attributable.
Under certain specific circumstances, Dutch taxation rights may be restricted pursuant to treaties for the avoidance of double taxation.
General
A holder of debt securities will not become resident or deemed resident of the Netherlands by reason only of holding the debt securities.
Gift and inheritance taxes
No Dutch gift tax or Dutch inheritance tax will arise with respect to an acquisition or deemed acquisition of debt securities by way of gift by, or upon the death of, a holder of debt securities who is neither resident nor deemed to be resident in The Netherlands for purposes of Dutch gift tax or Dutch inheritance tax except if, in the event of a gift whilst not being a resident nor being a deemed resident in The Netherlands for purposes of Dutch gift tax or Dutch inheritance tax, the holder of debt securities becomes a resident or a deemed resident in The Netherlands and dies within 180 days after the date of the gift.
For purposes of Dutch gift tax and Dutch inheritance tax, a gift of debt securities made under a condition precedent is deemed to be made at the time the condition precedent is satisfied.
Registration taxes and duties
No Dutch registration tax, transfer tax, stamp duty or any other similar documentary tax or duty, other than court fees, is payable in The Netherlands in respect of or in connection with the execution and/or enforcement (including by legal proceedings and including the enforcement of any foreign judgment in the courts of The Netherlands) of the documents relating to the issue of debt securities, the performance by the applicable Stellantis debt issuer or the guarantor of their respective obligations under such documents or under debt securities, or the transfer of debt securities.
United States Taxation of Common Shares
You should read “Taxation—Material U.S. Federal Income Tax Consequences” in the 2025 Annual Report, which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference
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in this prospectus, for information relating to material United States federal income tax consequences of the ownership and disposition of Stellantis’ common shares.
Dutch Taxation of Common Shares
You should read “Taxation—Material Netherlands Tax Consequences” in the 2025 Annual Report, which is incorporated by reference in this prospectus, or similar sections in subsequent filings incorporated by reference in this prospectus, for information relating to material Dutch tax consequences of the ownership and disposition of Stellantis’ common shares.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus:
•through underwriters;
•through dealers;
•through agents; or
•directly to one or more purchasers.
The prospectus supplement relating to any offering will identify or describe:
•any underwriters, dealers or agents;
•their compensation;
•the net proceeds to us;
•the purchase price of the securities;
•the initial public offering price of the securities; and
•any exchange on which the securities will be listed.
Underwriters
If we use underwriters in the sale, we will enter into an underwriting agreement, and a prospectus supplement will set forth the names of the underwriters and the terms of the transaction. The underwriters will acquire securities for their own account and may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. Unless we otherwise state in the applicable prospectus supplement, various conditions to the underwriters’ obligation to purchase securities apply, and the underwriters will be obligated to purchase all of the securities contemplated in an offering if they purchase any of such securities. Any initial public offering price and any discounts or concessions allowed or re-allowed or paid to dealers may be changed from time to time.
We may enter into derivative or other hedging transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities covered by this prospectus including securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowing of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of stock. The third party in such sale transactions will be an underwriter and, if not identified in this prospectus, will be identified in the applicable prospectus supplement (or in a post-effective amendment). Stellantis may also sell common shares short using this prospectus and deliver common shares covered by this prospectus to close out such short positions, or loan or pledge common shares to financial institutions that in turn may sell the common shares using this prospectus. We may pledge or grant a security interest in some or all of the common shares covered by this prospectus to support a derivative or hedging position or other obligation and, if
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Stellantis defaults in the performance of its obligations, the pledgees or secured parties may offer and sell the common shares from time to time pursuant to this prospectus.
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 us. 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 us and will describe the remarketing firm’s compensation.
If the prospectus supplement so indicates, we may authorize agents and underwriters or dealers to solicit offers by certain purchasers to purchase the securities from us at the public offering price set forth in the prospectus supplement. These contracts will be subject to only those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth the commission payable for solicitation of such offers.
Each series of debt securities offered will be a new issue of securities and will have no established trading market. The debt securities offered may or may not be listed on a national securities exchange. We cannot be sure as to the liquidity of or the existence of trading markets for any debt securities offered.
In connection with any offering, certain persons participating in the offering, such as the underwriters, if any, may purchase and sell securities in the open market. These transactions may include short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by such persons of a greater number of securities than they are required to purchase in the offering. Stabilizing transactions consist of certain bids or purchases made for the purpose of preventing or retarding a decline in the market price of the securities while the offering is in progress.
The underwriters, if any, in any offering also may impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the underwriting discount received by it because the representatives have repurchased securities sold by or for the account of such underwriter in stabilizing or short covering transactions.
These activities by such persons participating in the offering, as well as other purchases by such persons for their own accounts, may stabilize, maintain or otherwise affect the market prices of the securities. As a result, the prices of the securities may be higher than the prices that otherwise might exist in the open market. If these activities are commenced, they may be discontinued by such persons participating in the offering at any time. These transactions may be effected in the over-the-counter market or otherwise.
Dealers
If we use dealers in the sale, unless we otherwise indicate in the prospectus supplement, we will sell securities to the dealers as principals. The dealers may then resell the securities to the public at varying prices that the dealers may determine at the time of resale.
Agents and Direct Sales
We may sell securities directly or through agents that we designate. The prospectus supplement names any agent involved in the offering and sale and states any commissions we will pay to that agent. Unless we indicate otherwise in the prospectus supplement, any agent is acting on a best efforts basis for the period of its appointment.
Institutional Investors
If we indicate in the prospectus supplement, we will authorize underwriters, dealers or agents to solicit offers from various institutional investors to purchase securities. In this case, payment and delivery will be made on a future date that the prospectus supplement specifies. The underwriters, dealers or agents may impose limitations on the minimum amount that the institutional investor can purchase. They may also impose limitations on the portion of the aggregate amount of the securities that they may sell. These institutional investors include:
•commercial and savings banks;
•insurance companies;
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•pension funds;
•investment companies;
•educational and charitable institutions; and
•other similar institutions as we may approve.
The obligations of any of these purchasers pursuant to delayed delivery and payment arrangements will not be subject to any conditions. However, one exception applies. An institution’s purchase of the particular securities cannot at the time of delivery be prohibited under the laws of any jurisdiction that governs:
•the validity of the arrangements; or
•the performance by us or the institutional investor.
Indemnification
Agreements that we have entered into or may enter into with underwriters, dealers, agents or remarketing firms may entitle them to indemnification by us against various civil liabilities. These include liabilities under the Securities Act of 1933, as amended (the “Securities Act”). The agreements may also entitle them to contribution for payments which they may be required to make as a result of these liabilities. Underwriters, dealers, agents or remarketing firms may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
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 Stellantis to indemnification by Stellantis against certain civil liabilities, including liabilities under the Securities Act, and may be customers of, engage in transactions with or perform services for Stellantis in the ordinary course of business.
Market Making
In the event that we do not list securities of any series on a U.S. national securities exchange, various broker-dealers may make a market in the securities, but will have no obligation to do so, and may discontinue any market making at any time without notice. Consequently, it may be the case that no broker-dealer will make a market in securities of any series or that the liquidity of the trading market for the securities will be limited.
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VALIDITY OF SECURITIES
The validity of the debt securities and the guarantees will be passed upon for us by Sullivan & Cromwell LLP, our U.S. counsel, as to certain matters of New York law, and for any underwriters named in the applicable prospectus supplement by U.S. counsel to any such underwriters, as to certain matters of New York law. The validity of the debt securities, the common shares and the guarantees will be passed upon for us by De Brauw Blackstone Westbroek N.V. as to certain matters of Dutch law, and for any underwriters by Dutch counsel to any such underwriters. Sullivan & Cromwell LLP may rely upon the opinion of De Brauw Blackstone Westbroek N.V. with respect to all matters of Dutch law.
-62-
EXPERTS
The consolidated financial statements of Stellantis N.V. as of December 31, 2025 and 2024 and for each of the years in the two-year period ended December 31, 2025 incorporated by reference herein and the effectiveness of Stellantis N.V.’s internal control over financial reporting have been audited by Deloitte & Associés, an independent registered public accounting firm, as stated in their reports. Such consolidated financial statements are incorporated herein by reference in reliance upon the reports of such firm given their authority as experts in accounting and auditing.
The consolidated financial statements of Stellantis N.V. for the year ended December 31, 2023 appearing in Stellantis N.V.’s annual report on Form 20-F for the year ended December 31, 2025, have been audited by EY S.p.A., an independent registered public accounting firm, as set forth in their report thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. However, EY S.p.A. was not engaged to audit, review or apply any procedures to the adjustments described in Note 2 that were applied to restate the 2023 consolidated statement of cash flows as a result of the change in accounting policy, and accordingly, EY did not express an opinion or any other form of assurance about whether such adjustments are appropriate and have been properly applied. Those adjustments were audited by Deloitte & Associés in 2025. In the opinion of Deloitte & Associés, such adjustments are appropriate and have been properly applied.
-63-
EXPENSES
The following is a statement of the expenses to be incurred by us in connection with a distribution of securities registered under this registration statement:
| Securities and Exchange Commission registration fee | $ | (1) | ||||||
| Printing and engraving expenses | $ | (2) | ||||||
| Legal fees and expenses | $ | (2) | ||||||
| Accounting fees and expenses | $ | (2) | ||||||
| Indenture Trustee's fees and expenses | $ | (2) | ||||||
| Rating Agencies' fees | $ | (2) | ||||||
| Miscellaneous | $ | (2) | ||||||
| Total | $ | (2) | ||||||
____________________________
(1) The registrants are registering an indeterminate amount of securities under the registration statement and in accordance with Rules 456(b) and 457(r), the registrants are deferring payment of any registration fee until the time the securities are sold under the registration statement pursuant to a prospectus supplement.
(2) These fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be calculated at this time. An estimate of the aggregate amount of these expenses will be included in the applicable prospectus supplement.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 8. Indemnification of Directors and Officers.
Stellantis Group
The Group has purchased and maintains insurance for the benefit of its directors and officers which, subject to policy terms and limitations, includes coverage to reimburse directors and officers of Stellantis and its subsidiaries for all costs that are incurred in the defense of any action, suit or proceeding to which such directors or officers are made party in their capacity as such, or as director or officer of a company in which Stellantis owns shares or is a creditor.
Stellantis
Pursuant to Dutch law, Stellantis’ directors and officers may be liable to Stellantis for improper or negligent performance of their duties. They may in certain circumstances also be liable to third parties for damages in the event of bankruptcy, default on the payment of taxes, improper or negligent performance of their duties, or tort. In certain circumstances, directors or officers may also incur criminal liability.
Under its articles of association, Stellantis is required to indemnify any and all of its directors, officers, former directors, former officers (including former directors and officers of PSA), and any person who may have served at its request as a director or officer of another company in which it owns shares or of which it is a creditor, who were or are made a party or are threatened to be made a party or are involved in, any threatened, pending or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitral or investigative (each, a “Proceeding”), or any appeal in such a Proceeding or any inquiry or investigation that could lead to such a Proceeding against any and all liabilities, damages, reasonable and documented expenses (including reasonably incurred and substantiated attorney’s fees), financial effects of judgments, fines, penalties (including excise and similar taxes and punitive damages) and amounts paid in settlement in connection with such Proceeding by any of them. However, no indemnification will be made in respect of any claim, issue, or matter as to which any of the above-mentioned indemnified persons is adjudged by the competent court or, in the event of arbitration, by an arbiter, in a final and non-appealable decision to be liable for gross negligence or willful misconduct in the performance of such person’s duty to Stellantis. This indemnification by Stellantis is not exclusive of any other rights to which those indemnified may be entitled otherwise.
The provisions of Dutch law governing the liability of directors and officers are mandatory in nature. Although Dutch law does not provide for any provisions with respect to the indemnification of directors and officers, the concept of indemnification of directors and officers of a company for liabilities arising from actions undertaken because of their position in the company is, in principle, accepted in The Netherlands.
Stellantis Finance
Section 102(b)(7) of the Delaware General Corporation Law (the “DGCL”) provides that a corporation may, in its certificate of incorporation, eliminate or limit the personal liability of a director to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director’s duty of loyalty to the corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the DGCL (pertaining to certain prohibited acts including unlawful payment of dividends or unlawful purchase or redemption of the corporation’s capital stock); or (iv) for any transaction from which the director derived an improper personal benefit.
Section 145 of the DGCL provides, in relevant part, that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding (other than an action by or in the right of the corporation) by reason of the fact that such person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding if such person acted in good faith and in a manner such person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe such person’s conduct was unlawful. Eligibility for
II-1
indemnification in relation to an action or suit by or in the right of the corporation may be further subject to the adjudication of the Delaware Court of Chancery or the court in which such action or suit was brought. The determination regarding whether the indemnitee has met the applicable standard of conduct generally must be made by a majority of disinterested directors (or a committee thereof) or the stockholders, although indemnification is mandatory where the indemnitee is successful on the merits or otherwise in defense of the action. A corporation may advance the expenses incurred by an officer or director in defending against any action, suit or proceeding upon receipt of an undertaking by or on behalf of such person to repay such expenses if it is ultimately determined that such person is not entitled to indemnification. The statute also provides that indemnification pursuant to its provisions is not exclusive of other rights of indemnification to which a person may be entitled under any by-law, agreement, vote of stockholders or disinterested directors, or otherwise.
Section 145(g) of the DGCL authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as such at any other enterprise against any liability asserted against and incurred by such person in such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person under the DGCL.
The DGCL permits the indemnification by a Delaware corporation of its directors, officers, employees and other agents against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with specified actions, suits or proceedings, whether civil, criminal, administrative or investigative (other than derivative actions which are by or in the right of the corporation) if they acted in good faith in a manner they reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe their conduct was unlawful. A similar standard of care is applicable in the case of derivative actions, except that indemnification only extends to expenses (including attorneys’ fees) incurred in connection with defense or settlement of such an action and requires court approval before there can be any indemnification where the person seeking indemnification has been found liable to the corporation.
The certificate of incorporation of Stellantis Finance provides that a director of Stellantis Finance will not be liable to Stellantis Finance or its shareholders for monetary damages for breach of fiduciary duty as a director, except in certain cases where liability is mandated by the DGCL. Stellantis Finance’s bylaws provide for indemnification of its officers, directors, employees and agents to the extent permitted by the DGCL.
Item 9. Exhibits
Reference is made to the Exhibit Index included herewith which is incorporated herein by reference.
Item 10. Undertakings
Each of the undersigned registrants hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the SEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Filing Fee” table in the effective registration statement;
(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;
II-2
provided, however, that paragraphs (i), (ii) and (iii) of this section do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the SEC by Stellantis pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) 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 Securities Act need not be furnished, provided that the registrant includes in the prospectus, by means of a post-effective amendment, financial statements required pursuant to this paragraph (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, a post-effective amendment need not be filed to include financial statements and information required by Section 10(a)(3) of the Securities Act or Item 8.A of Form 20-F if such financial statements and information are contained in periodic reports filed with or furnished to the SEC by the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement.
(5) That, for the purpose of determining liability under the Securities Act to any purchaser:
(i) Each prospectus filed by a registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(6) That, for the purpose of determining liability of a registrant under the Securities Act to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
II-3
(i) Any preliminary prospectus or prospectus of an undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of an undersigned registrant or used or referred to by an undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about an undersigned registrant or its securities provided by or on behalf of an undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by an undersigned registrant to the purchaser.
(7) That, for purposes of determining any liability under the Securities Act, each filing of Stellantis’ annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(8) 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.
Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrants pursuant to the foregoing provisions, or otherwise, the registrants have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the 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 their counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
II-4
INDEX TO EXHIBITS
| Exhibit Number | Description of Document | ||||
| 1.1 | Form of Underwriting Agreement for Debt Securities of Stellantis.* | ||||
| 1.2 | Form of Underwriting Agreement for Debt Securities of Stellantis Finance.* | ||||
| 1.3 | Form of Underwriting Agreement for Common Shares.* | ||||
| 4.1 | |||||
| 4.2 | |||||
| 4.3 | |||||
| 4.4 | |||||
| 4.5 | |||||
| 4.6 | |||||
| 5.1 | |||||
| 5.2 | |||||
| 8.1 | |||||
| 8.2 | |||||
| 23.1 | |||||
| 23.2 | |||||
| 23.3 | |||||
| 23.4 | Consent of Sullivan & Cromwell LLP (included in Exhibits 5.2 and 8.2 above). | ||||
| 24.1 | Powers of attorney for signatories of Stellantis and Stellantis Finance (included as part of the signature pages of the Registration Statement). | ||||
| 25.1 | |||||
| 25.2 | |||||
| 107 | |||||
II-5
* To be filed by amendment or incorporated by reference to a subsequently filed Report on Form 6-K.
II-6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Stellantis N.V. 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 Auburn Hills, Michigan, on August 3, 2026.
| Stellantis N.V. | ||||||||
| By: | /s/ Joao Laranjo | |||||||
| Name: Joao Laranjo | ||||||||
| Title: Chief Financial Officer | ||||||||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints Giorgio Fossati his or her true and lawful attorney-in-fact and agent, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any Blue Sky laws or other securities laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on August 3, 2026.
| Signature | Title | |||||||
| /s/ John Elkann | ||||||||
| John Elkann | Chairman and Director | |||||||
| /s/ Antonio Filosa | Chief Executive Officer and Director | |||||||
| Antonio Filosa | (principal executive officer) | |||||||
| /s/ Joao Laranjo | Chief Financial Officer | |||||||
| Joao Laranjo | (principal financial officer) | |||||||
| /s/ Bonnie Van Etten | Chief Accounting Officer | |||||||
| Bonnie Van Etten | (principal financial officer) | |||||||
| /s/ Robert Peugeot | ||||||||
| Robert Peugeot | Vice Chairman and Director | |||||||
| /s/ Henri de Castries | ||||||||
| Henri de Castries | Director | |||||||
| /s/ Fiona Clare Cicconi | ||||||||
| Fiona Clare Cicconi | Director | |||||||
| /s/ Nicolas Dufourcq | ||||||||
| Nicolas Dufourcq | Director | |||||||
| /s/ Juergen Esser | ||||||||
| Juergen Esser | Director | |||||||
| /s/ Ann Godbehere | ||||||||
| Ann Godbehere | Director | |||||||
| /s/ Claudia Parzani | ||||||||
| Claudia Parzani | Director | |||||||
| /s/ Daniel Ramot | ||||||||
| Daniel Ramot | Director | |||||||
| /s/ Benoît Ribadeau-Dumas | ||||||||
| Benoît Ribadeau-Dumas | Director | |||||||
| /s/ Alice Davey Schroeder | ||||||||
| Alice Davey Schroeder | Director | |||||||
| /s/ Christopher J. Pardi | ||||||||
| Christopher J. Pardi | Authorized Representative in the United States | |||||||
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, Stellantis Finance US Inc. 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 Turin, Italy, on August 3, 2026.
| STELLANTIS FINANCE US INC. | ||||||||
| By: | /s/ Ferrante Zileri Dal Verme | |||||||
| Name: Ferrante Zileri Dal Verme | ||||||||
| Title: President and Treasurer | ||||||||
KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below severally constitutes and appoints Giorgio Fossati, his or her true and lawful attorneys-in-fact and agents, with full power of substitution and re-substitution, for him or her and in his or her name, place and stead, in any and all capacities to do any and all things and execute any and all instruments that such attorney may deem necessary or advisable under the Securities Act of 1933 (the “Securities Act”), and any rules, regulations and requirements of the Securities and Exchange Commission (the “Commission”) in connection with the registration under the Securities Act of the Securities and any Blue Sky laws or other securities laws of any of the states of the United States of America in order to effect the registration or qualification (or exemption therefrom) of the said securities for issue, offer, sale or trade under the Blue Sky or other securities laws of any of such states and in connection therewith to execute, acknowledge, verify, deliver, file and cause to be published applications, reports, consents to service of process, appointments of attorneys to receive service of process and other papers and instruments which may be required under such laws, including specifically, but without limiting the generality of the foregoing, the power and authority to sign his or her name in his or her capacity as an attorney-in-fact or in any other capacity with respect to this Registration Statement and/or such other form or forms as may be appropriate to be filed with the Commission or under or in connection with any Blue Sky laws or other securities laws of any state of the United States of America or with such other regulatory bodies and agencies as any of them may deem appropriate in respect of the Securities, and with respect to any and all amendments, including post-effective amendments, to this Registration Statement and to any and all instruments and documents filed as part of or in connection with this Registration Statement.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed below by the following persons in the capacities indicated on August 3, 2026.
| Signature | Title | |||||||
| /s/ Ferrante Zileri Dal Verme | President, Treasurer and Director | |||||||
| Ferrante Zileri Dal Verme | (principal executive officer and principal financial officer) | |||||||
| /s/ Andrea Fluent | Chief Accounting Officer | |||||||
| Andrea Fluent | (principal accounting officer) | |||||||
| /s/ Patrick Fiedler | Vice President, Assistant Treasurer and Director | |||||||
| Patrick Fiedler | ||||||||
| /s/ Raffaella Papa | ||||||||
| Raffaella Papa | Director | |||||||
| /s/ Maria Zehnder | ||||||||
| Maria Zehnder | Director | |||||||
|
Calculation of Filing Fee Tables |
|||
|
|
|||
|
|
|||
| Table 1: Newly Registered and Carry Forward Securities |
|---|
|
Security Type |
Security Class Title |
Fee Calculation or Carry Forward Rule |
Amount Registered |
Proposed Maximum Offering Price Per Unit |
Maximum Aggregate Offering Price |
Fee Rate |
Amount of Registration Fee |
Carry Forward Form Type |
Carry Forward File Number |
Carry Forward Initial Effective Date |
Filing Fee Previously Paid in Connection with Unsold Securities to be Carried Forward |
||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Newly Registered Securities | |||||||||||||
|
|
1 |
|
|
|
|
||||||||
|
|
2 |
|
|
|
|
||||||||
|
|
3 |
|
|
|
|
||||||||
|
|
4 |
|
|
|
|
$
|
|||||||
| Fees Previously Paid | |||||||||||||
| Carry Forward Securities | |||||||||||||
| Carry Forward Securities | |||||||||||||
|
Total Offering Amounts: |
$
|
$
|
|||||||||||
|
Total Fees Previously Paid: |
$
|
||||||||||||
|
Total Fee Offsets: |
$
|
||||||||||||
|
Net Fee Due: |
$
|
||||||||||||
|
Offering Note |
|
1 |
|
||||||
|
|
|||||||
|
2 |
|
||||||
|
|
|||||||
|
3 |
|
||||||
|
|
|||||||
|
4 |
|
||||||
|
|
|||||||
| Table 2: Fee Offset Claims and Sources |
|---|
| Registrant or Filer Name | Form or Filing Type | File Number | Initial Filing Date | Filing Date | Fee Offset Claimed | Security Type Associated with Fee Offset Claimed | Security Title Associated with Fee Offset Claimed | Unsold Securities Associated with Fee Offset Claimed | Unsold Aggregate Offering Amount Associated with Fee Offset Claimed | Fee Paid with Fee Offset Source | |||
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| Rules 457(b) and 0-11(a)(2) | |||||||||||||
| Fee Offset Claims | |||||||||||||
| Fee Offset Sources | |||||||||||||
| Rule 457(p) | |||||||||||||
| Fee Offset Claims | |||||||||||||
| Fee Offset Sources | |||||||||||||
| Table 3: Combined Prospectuses |
|---|
|
Security Type |
Security Class Title |
Amount of Securities Previously Registered |
Maximum Aggregate Offering Price of Securities Previously Registered |
Form Type |
File Number |
Initial Effective Date |
|
|---|---|---|---|---|---|---|---|
Exhibit 4.1
STELLANTIS N.V.,
as Company,
and
THE BANK OF NEW YORK MELLON,
as Trustee
Indenture
Dated as of
__________________.
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
| Trust Indenture Act Section | Indenture Section | ||||||||||
| § 310(a)(1) | .................................................................................. | 6.09 | |||||||||
| (a)(2) | .................................................................................. | 6.09 | |||||||||
| (a)(3) | .................................................................................. | Not Applicable | |||||||||
| (a)(4) | .................................................................................. | Not Applicable | |||||||||
| (b) | .................................................................................. | 6.08 | |||||||||
| 6.10 | |||||||||||
| § 311(a) | .................................................................................. | 6.13 | |||||||||
| (b) | .................................................................................. | 6.13 | |||||||||
| § 312(a) | .................................................................................. | 7.01 | |||||||||
| 7.02 | |||||||||||
| (b) | .................................................................................. | 7.02 | |||||||||
| (c) | .................................................................................. | 7.02 | |||||||||
| § 313(a) | .................................................................................. | 7.03 | |||||||||
| (b) | .................................................................................. | 7.03 | |||||||||
| (c) | .................................................................................. | 7.03 | |||||||||
| (d) | .................................................................................. | 7.03 | |||||||||
| § 314(a) | .................................................................................. | 7.04 | |||||||||
| (a)(4) | .................................................................................. | 1.01 | |||||||||
| 10.04 | |||||||||||
| (b) | .................................................................................. | Not Applicable | |||||||||
| (c)(1) | .................................................................................. | 1.02 | |||||||||
| (c)(2) | .................................................................................. | 1.02 | |||||||||
| (c)(3) | .................................................................................. | Not Applicable | |||||||||
| (d) | .................................................................................. | Not Applicable | |||||||||
| (e) | .................................................................................. | 1.02 | |||||||||
| § 315(a) | .................................................................................. | 6.01 | |||||||||
| (b) | .................................................................................. | 6.02 | |||||||||
| (c) | .................................................................................. | 6.01 | |||||||||
| (d) | .................................................................................. | 6.01 | |||||||||
| (e) | .................................................................................. | 5.14 | |||||||||
| § 316(a) | .................................................................................. | 1.01 | |||||||||
| (a)(1)(A) | .................................................................................. | 5.02 | |||||||||
| 5.12 | |||||||||||
| (a)(1)(B) | .................................................................................. | 5.13 | |||||||||
| (a)(2) | .................................................................................. | Not Applicable | |||||||||
| (b) | .................................................................................. | 5.08 | |||||||||
| (c) | .................................................................................. | 1.04 | |||||||||
| § 317(a)(1) | .................................................................................. | 5.03 | |||||||||
| (a)(2) | .................................................................................. | 5.04 | |||||||||
| (b) | .................................................................................. | 10.03 | |||||||||
| § 318(a) | .................................................................................. | 1.07 | |||||||||
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
| RECITALS | .......................................................................................................................................... | 1 | ||||||
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. | Definitions.................................................................................................................................... | 1 | |||||||||
| Act ................................................................................................................................................................. | 2 | ||||
| Additional Amounts ...................................................................................................................................... | 2 | ||||
| Affiliate ......................................................................................................................................................... | 2 | ||||
| Applicable Tax Law ...................................................................................................................................... | 2 | ||||
| Authenticating Agent .................................................................................................................................... | 2 | ||||
| Authorized Agent .......................................................................................................................................... | 2 | ||||
| Authorized Person ......................................................................................................................................... | 2 | ||||
| Board of Directors ......................................................................................................................................... | 2 | ||||
| Board Resolution .......................................................................................................................................... | 2 | ||||
| Business Day ................................................................................................................................................. | 2 | ||||
| Change of Control ......................................................................................................................................... | 2 | ||||
| Change of Control Event .............................................................................................................................. | 3 | ||||
| Change of Control Offer ............................................................................................................................... | 3 | ||||
| Change of Control Payment .......................................................................................................................... | 3 | ||||
| Change of Control Payment Date ................................................................................................................. | 3 | ||||
| Code .............................................................................................................................................................. | 3 | ||||
| Commission .................................................................................................................................................. | 3 | ||||
| Common Shares ............................................................................................................................................ | 3 | ||||
| Company ....................................................................................................................................................... | 3 | ||||
| Company Request ......................................................................................................................................... | 3 | ||||
| Company Order ............................................................................................................................................. | 3 | ||||
| Corporate Trust Office .................................................................................................................................. | 3 | ||||
| Covenant Defeasance..................................................................................................................................... | 3 | ||||
| Defaulted Interest .......................................................................................................................................... | 3 | ||||
| Defeased Covenant........................................................................................................................................ | 3 | ||||
| Depositary ..................................................................................................................................................... | 4 | ||||
| Electronic Means .......................................................................................................................................... | 4 | ||||
| Etablissements Peugeot Frères .................................................................................................................... | 4 | ||||
| Event of Default ............................................................................................................................................ | 4 | ||||
| Exchange Act ................................................................................................................................................ | 4 | ||||
| Expiration Date ............................................................................................................................................. | 4 | ||||
| Financial Services Subsidiary ....................................................................................................................... | 4 | ||||
| Global Security ............................................................................................................................................. | 5 | ||||
| Government Securities .................................................................................................................................. | 5 | ||||
| Holder ........................................................................................................................................................... | 5 | ||||
| Indebtedness .................................................................................................................................................. | 5 | ||||
| Instructions .................................................................................................................................................... | 5 | ||||
| Interest ........................................................................................................................................................... | 5 | ||||
| Investment Grade .......................................................................................................................................... | 6 | ||||
| Interest Payment Date.................................................................................................................................... | 6 | ||||
| Investment Company Act ............................................................................................................................. | 6 | ||||
| Issue Date ...................................................................................................................................................... | 6 | ||||
| Legal Defeasance ......................................................................................................................................... | 6 | ||||
| Lien ............................................................................................................................................................... | 6 | ||||
| Loan Financing ............................................................................................................................................. | 6 | ||||
| Maturity.......................................................................................................................................................... | 6 | ||||
| Material Subsidiary........................................................................................................................................ | 6 | ||||
| Member of the Group .................................................................................................................................... | 7 | ||||
| Moody’s ........................................................................................................................................................ | 7 | ||||
| Non-recourse Securitization .......................................................................................................................... | 7 | ||||
| Non-recourse Securitization Debt ................................................................................................................. | 7 | ||||
| OECD ............................................................................................................................................................ | 8 | ||||
| OECD Country .............................................................................................................................................. | 8 | ||||
| Officer ........................................................................................................................................................... | 8 | ||||
| Officer’s Certificate ..................................................................................................................................... | 8 | ||||
| Opinion of Counsel ....................................................................................................................................... | 8 | ||||
| Original Issue Discount Security .................................................................................................................. | 8 | ||||
| Outstanding ................................................................................................................................................... | 8 | ||||
| Par Call Date ................................................................................................................................................. | 9 | ||||
| Payor ............................................................................................................................................................. | 9 | ||||
| Paying Agent ................................................................................................................................................. | 9 | ||||
| Permitted Liens ............................................................................................................................................. | 9 | ||||
| Person ............................................................................................................................................................ | 11 | ||||
| Peugeot Invest ............................................................................................................................................... | 11 | ||||
| Place of Payment ........................................................................................................................................... | 11 | ||||
| Predecessor Security ..................................................................................................................................... | 11 | ||||
| Qualifying Guarantee ................................................................................................................................... | 11 | ||||
| Quoted Indebtedness ..................................................................................................................................... | 11 | ||||
| Rating Agency ............................................................................................................................................. | 11 | ||||
| Rating Date ................................................................................................................................................... | 11 | ||||
| Rating Decline ............................................................................................................................................. | 12 | ||||
| Redemption Date .......................................................................................................................................... | 12 | ||||
| Redemption Price .......................................................................................................................................... | 12 | ||||
| Regular Record Date ..................................................................................................................................... | 12 | ||||
| Related Party ................................................................................................................................................. | 12 | ||||
| Relevant Jurisdiction ..................................................................................................................................... | 13 | ||||
| Responsible Officer ...................................................................................................................................... | 13 | ||||
| Securities ....................................................................................................................................................... | 13 | ||||
| Securities Act ................................................................................................................................................ | 13 | ||||
| Security Register ........................................................................................................................................... | 13 | ||||
| Security Registrar .......................................................................................................................................... | 13 | ||||
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| Securitizable Asset ..................................................................................................................................... | |||||
| Securitization Entity ..................................................................................................................................... | 13 | ||||
| Special Record Date ..................................................................................................................................... | 13 | ||||
| S&P ............................................................................................................................................................... | 13 | ||||
| Standard Securitization Undertaking ............................................................................................................ | 13 | ||||
| Stated Maturity .............................................................................................................................................. | 13 | ||||
| Subsidiary ..................................................................................................................................................... | 14 | ||||
| Substitute ...................................................................................................................................................... | 14 | ||||
| Substitution by Guarantor Documents ......................................................................................................... | 14 | ||||
| Taxes ............................................................................................................................................................. | 14 | ||||
| Treasury Rate ................................................................................................................................................ | 14 | ||||
| Treasury Subsidiary....................................................................................................................................... | 14 | ||||
| Trust Indenture Act........................................................................................................................................ | 14 | ||||
| Trustee ........................................................................................................................................................... | 14 | ||||
| Voting Stock.................................................................................................................................................. | 14 | ||||
SECTION 1.02. | Compliance Certificates and Opinions ....................................................................... | 14 | |||||||||
| SECTION 1.03. | Form of Documents Delivered to Trustee .................................................................. | 15 | |||||||||
| SECTION 1.04. | Acts of Holders; Record Dates ................................................................................... | 15 | |||||||||
| SECTION 1.05. | Notices, Etc., to Trustee and the Company ................................................................ | 18 | |||||||||
| SECTION 1.06. | Notice to Holders; Waiver ......................................................................................... | 19 | |||||||||
| SECTION 1.07. | Conflict with Trust Indenture Act .............................................................................. | 19 | |||||||||
| SECTION 1.08. | Effect of Headings and Table of Contents ................................................................. | 19 | |||||||||
| SECTION 1.09. | Successors and Assigns .............................................................................................. | 19 | |||||||||
| SECTION 1.10. | Separability Clause ..................................................................................................... | 20 | |||||||||
| SECTION 1.11. | Benefits of Indenture .................................................................................................. | 20 | |||||||||
| SECTION 1.12. | Governing Law; Waiver of Jury Trial ........................................................................ | 20 | |||||||||
| SECTION 1.13. | Legal Holidays ........................................................................................................... | 20 | |||||||||
| SECTION 1.14. | Authorized Agent; Submission to Jurisdiction; Waiver of Immunity ....................... | 20 | |||||||||
ARTICLE TWO
SECURITY FORMS
| SECTION 2.01. | Forms Generally ......................................................................................................... | 21 | |||||||||
| SECTION 2.02. | Form of Face of Security ............................................................................................ | 21 | |||||||||
| SECTION 2.03. | Form of Reverse of Security ...................................................................................... | 23 | |||||||||
| SECTION 2.04. | Securities in Global Form .......................................................................................... | 31 | |||||||||
| SECTION 2.05. | Form of Trustee’s Certificate of Authentication ........................................................ | 31 | |||||||||
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ARTICLE THREE
THE SECURITIES
| SECTION 3.01. | Amount Unlimited; Issuable in Series ....................................................................... | 32 | |||||||||
| SECTION 3.02. | Denominations ........................................................................................................... | 35 | |||||||||
| SECTION 3.03. | Execution, Authentication, Delivery and Dating ....................................................... | 35 | |||||||||
| SECTION 3.04. | Temporary Securities ................................................................................................ | 37 | |||||||||
| SECTION 3.05. | Registration, Registration of Transfer and Exchange ................................................ | 37 | |||||||||
| SECTION 3.06. | Mutilated, Destroyed, Lost and Stolen Securities ...................................................... | 39 | |||||||||
| SECTION 3.07. | Payment of Interest; Interest Rights Preserved .......................................................... | 40 | |||||||||
| SECTION 3.08. | Persons Deemed Owners ............................................................................................ | 41 | |||||||||
| SECTION 3.09. | Cancellation ................................................................................................................ | 41 | |||||||||
| SECTION 3.10. | Computation of Interest .............................................................................................. | 42 | |||||||||
| SECTION 3.11. | CUSIP Numbers ......................................................................................................... | 42 | |||||||||
ARTICLE FOUR
SATISFACTION AND DISCHARGE
| SECTION 4.01. | Satisfaction and Discharge of Indenture. ................................................................... | 42 | |||||||||
| SECTION 4.02. | Application of Trust Money........................................................................................ | 43 | |||||||||
ARTICLE FIVE
REMEDIES
| SECTION 5.01. | Events of Default ........................................................................................................ | 44 | |||||||||
| SECTION 5.02. | Acceleration of Maturity; Rescission and Annulment; Waiver of Existing Default ........................................................................................................................ | 45 | |||||||||
| SECTION 5.03. | Collection of Indebtedness and Suits for Enforcement by Trustee ............................ | 46 | |||||||||
| SECTION 5.04. | Trustee May File Proofs of Claim .............................................................................. | 46 | |||||||||
| SECTION 5.05. | Trustee May Enforce Claims Without Possession of Securities ................................ | 47 | |||||||||
| SECTION 5.06. | Application of Money Collected ................................................................................ | 47 | |||||||||
| SECTION 5.07. | Limitation on Suits ..................................................................................................... | 48 | |||||||||
| SECTION 5.08. | Unconditional Right of Holders to Receive Principal, Premium and Interest ........... | 48 | |||||||||
| SECTION 5.09. | Restoration of Rights and Remedies........................................................................... | 49 | |||||||||
| SECTION 5.10. | Rights and Remedies Cumulative............................................................................... | 49 | |||||||||
| SECTION 5.11. | Delay or Omission Not Waiver .................................................................................. | 49 | |||||||||
| SECTION 5.12. | Control by Holders ..................................................................................................... | 49 | |||||||||
| SECTION 5.13. | Waiver of Past Defaults.............................................................................................. | 50 | |||||||||
| SECTION 5.14. | Undertaking for Costs ................................................................................................ | 50 | |||||||||
| SECTION 5.15. | Waiver of Usury, Stay or Extension Laws ................................................................. | 50 | |||||||||
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ARTICLE SIX
THE TRUSTEE
| SECTION 6.01. | Certain Duties and Responsibilities............................................................................ | 51 | |||||||||
| SECTION 6.02 | Notice of Defaults....................................................................................................... | 52 | |||||||||
| SECTION 6.03 | Certain Rights of Trustee ........................................................................................... | 52 | |||||||||
| SECTION 6.04. | Not Responsible for Recitals or Issuance of Securities.............................................. | 54 | |||||||||
| SECTION 6.05. | May Hold Securities ................................................................................................... | 54 | |||||||||
| SECTION 6.06. | Money Held in Trust .................................................................................................. | 54 | |||||||||
| SECTION 6.07. | Compensation and Reimbursement ............................................................................ | 54 | |||||||||
| SECTION 6.08. | Disqualification; Conflicting Interests........................................................................ | 55 | |||||||||
| SECTION 6.09. | Corporate Trustee Required; Eligibility...................................................................... | 55 | |||||||||
| SECTION 6.10. | Resignation and Removal; Appointment of Successor............................................... | 55 | |||||||||
| SECTION 6.11 | Acceptance of Appointment by Successor.................................................................. | 57 | |||||||||
| SECTION 6.12. | Merger, Conversion, Consolidation or Succession to Business.................................. | 58 | |||||||||
| SECTION 6.13. | Preferential Collection of Claims Against the Company............................................ | 58 | |||||||||
ARTICLE SEVEN
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
| SECTION 7.01. | Company to Furnish Trustee Names and Addresses of Holders ................................ | 60 | |||||||||
| SECTION 7.02. | Preservation of Information; Communications to Holders ........................................ | 60 | |||||||||
| SECTION 7.03. | Reports by Trustee ..................................................................................................... | 61 | |||||||||
| SECTION 7.04. | Reports by the Company ........................................................................................... | 61 | |||||||||
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS; SUBSTITUTION
| SECTION 8.01. | Company May Consolidate, Etc., Only on Certain Terms ........................................ | 62 | |||||||||
| SECTION 8.02. | Successor Substituted ................................................................................................. | 62 | |||||||||
| SECTION 8.03. | Substitution of the Company ...................................................................................... | 63 | |||||||||
| SECTION 8.04. | Holders’ Consent Regarding Substitution................................................................... | 64 | |||||||||
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ARTICLE NINE
SUPPLEMENTAL INDENTURES
| SECTION 9.01. | Supplemental Indentures Without Consent of Holders .............................................. | 65 | |||||||||
| SECTION 9.02. | Supplemental Indentures With Consent of Holders ................................................... | 66 | |||||||||
| SECTION 9.03. | Execution of Supplemental Indentures ...................................................................... | 68 | |||||||||
| SECTION 9.04. | Effect of Supplemental Indentures ............................................................................. | 68 | |||||||||
| SECTION 9.05. | Conformity with Trust Indenture Act ........................................................................ | 68 | |||||||||
| SECTION 9.06. | Reference in Securities to Supplemental Indentures .................................................. | 68 | |||||||||
ARTICLE TEN
COVENANTS
| SECTION 10.01. | Payment of Principal, Premium and Interest .............................................................. | 69 | |||||||||
| SECTION 10.02. | Maintenance of Office or Agency by Company ........................................................ | 69 | |||||||||
| SECTION 10.03. | Money for Securities Payments to Be Held in Trust .................................................. | 69 | |||||||||
| SECTION 10.04. | Statement by Officers as to Default ........................................................................... | 70 | |||||||||
| SECTION 10.05. | Existence .................................................................................................................... | 71 | |||||||||
| SECTION 10.06. | Payment of Taxes and Other Claims .......................................................................... | 71 | |||||||||
| SECTION 10.07. | Waiver of Certain Covenants ..................................................................................... | 71 | |||||||||
| SECTION 10.08. | Additional Amounts ................................................................................................... | 72 | |||||||||
| SECTION 10.09. | Negative Pledge ......................................................................................................... | 73 | |||||||||
| SECTION 10.10. | Repurchase at the Option of Holders ......................................................................... | 73 | |||||||||
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
| SECTION 11.01. | Applicability of Article .............................................................................................. | 75 | |||||||||
| SECTION 11.02. | Election to Redeem; Notice to Trustee ...................................................................... | 75 | |||||||||
| SECTION 11.03. | Selection by Trustee of Securities to Be Redeemed .................................................. | 75 | |||||||||
| SECTION 11.04. | Notice of Redemption ................................................................................................ | 76 | |||||||||
| SECTION 11.05. | Deposit of Redemption Price ..................................................................................... | 77 | |||||||||
| SECTION 11.06. | Securities Payable on Redemption Date .................................................................... | 77 | |||||||||
| SECTION 11.07. | Securities Redeemed in Part ....................................................................................... | 77 | |||||||||
| SECTION 11.08. | Securities No Longer Outstanding After Notice to Trustee and Deposit of Money ....................................................................................................... | 78 | |||||||||
| SECTION 11.09. | Other Purchases .......................................................................................................... | 78 | |||||||||
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ARTICLE TWELVE
SINKING FUNDS
| SECTION 12.01. | Applicability of Article .............................................................................................. | 78 | |||||||||
| SECTION 12.02. | Satisfaction of Sinking Fund Payments with Securities ............................................ | 79 | |||||||||
| SECTION 12.03. | Redemption of Securities for Sinking Fund ............................................................... | 79 | |||||||||
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
| SECTION 13.01. | Company’s Option to Effect Legal Defeasance or Covenant Defeasance ................. | 79 | |||||||||
| SECTION 13.02. | Defeasance and Discharge ......................................................................................... | 80 | |||||||||
| SECTION 13.03. | Covenant Defeasance ................................................................................................. | 80 | |||||||||
| SECTION 13.04. | Conditions to Legal Defeasance or Covenant Defeasance | 81 | |||||||||
| SECTION 13.05. | Deposited Money and Government Securities to Be Held in Trust; Miscellaneous Provisions ........................................................................................... | 82 | |||||||||
| SECTION 13.06. | Reinstatement | 83 | |||||||||
ARTICLE FOURTEEN
MISCELLANEOUS
| SECTION 14.01. | Counterparts ............................................................................................................... | 83 | |||||||||
| SECTION 14.02. | Withholding ............................................................................................................... | 84 | |||||||||
| SECTION 14.03. | No Personal Liability of Directors, Officers, Employees and Stockholders ............................................................................................................... | 84 | |||||||||
| SECTION 14.04. | Office of Foreign Assets Control Sanctions Representations .................................... | 84 | |||||||||
-vii-
INDENTURE, dated as of _____________ between Stellantis N.V., a public company with limited liability (naamloze vennootschap) incorporated under Dutch law, having its principal address at Taurusavenue 1, 2132 LS Hoofddorp, The Netherlands (herein called the “Company”), and The Bank of New York Mellon, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at 240 Greenwich Street, Floor 7E, New York, NY 10286.
RECITALS
The Company has duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article One and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with the International Financial Reporting Standards;
(4) “or” is not exclusive;
(5) “including” or “include” means including or include without limitation;
(6) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and
(7) 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.
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.
“Additional Amounts” has the meaning specified in Section 2.03.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Applicable Tax Law” has the meaning specified in Section 15.02.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Agent” has the meaning specified in Section 1.14.
“Authorized Person” has the meaning specified in Section 1.05.
“Board of Directors” means the board of directors of the Company, or any duly authorized committee of such board.
“Board Resolution” when used with reference to the Company means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company, to have been duly adopted by its Board of Directors (or a duly authorized committee of board members acting under delegated authority or a duly authorized board member thereof acting under delegated authority) to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means each day which is not a Saturday, a Sunday or a day on which commercial banking institutions are authorized or required by law or executive order to close or be closed in The City of New York, or, with respect to a Place of Payment, such Place of Payment.
“Change of Control” means the occurrence of any of the following after the Issue Date:
1. the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act, or any successor provision), other than one or more Related Parties, becomes the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of Stellantis N.V. measured by voting power rather than number of shares; or
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2. the stockholders of the Company approve any plan of liquidation or dissolution of the Company, other than in connection with a merger, consolidation or other form of combination while the Company is solvent, with another company where such company assumes all obligations of the Company under the Securities, and where such merger, consolidation or other combination does not have the effect of or result in an event described in paragraph (1) above.
“Change of Control Event” means the occurrence of a Change of Control and a Rating Decline.
“Change of Control Offer” has the meaning specified in Section 10.10.
“Change of Control Payment” has the meaning specified in Section 10.10.
“Change of Control Payment Date” has the meaning specified in Section 10.10.
“Code” has the meaning specified in Section 2.03.
“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Shares” means the common shares of the Company, par value €0.01 per share.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by at least one Officer of the Company and delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, Floor 7E, New York, NY 10286, Attn: Corporate Trust Administration, or any other address that the Trustee may designate with respect to itself from time to time by notice to the Company and the Holders, 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 Company and the Holders).
“Covenant Defeasance” has the meaning specified in Section 13.03.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Defeased Covenant” has the meaning specified in Section 13.03.
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“Depositary” means, with respect to the Securities issuable or issued in whole or in part in global form, any Person that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Etablissements Peugeot Frères” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 875 750 317.
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Expiration Date” has the meaning specified in Section 1.04.
“Financial Services Subsidiary” means a Subsidiary of the Company:
A. which carries on no material business other than the offer and sale of financial services products to customers, dealers or suppliers of Members of the Group (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing and rental business activities) in any of the following areas:
(1) retail financing for the purchase, contract hire or lease of new or old equipment manufactured by a Member of the Group or any other manufacturer whose products are from time to time sold through the dealer network of a Member of the Group;
(2) other retail and wholesale financing programs reasonably related thereto, including, without limitation, financing to the dealer network of any Member of the Group;
(3) insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and
(4) factoring and/or licensed banking activities; or
B. a holding company of a Financial Services Subsidiary which carries on no material business or activity other than holding shares in that Financial Services Subsidiary and/or activities described in Clause (A) above.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
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“Government Securities” means securities that are (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indebtedness” means any indebtedness (whether principal, premium or interest) for or in respect of (A) any notes, bonds, debenture stock, loan stock or other securities, (B) any Loan Financing, or (C) any liability under or in respect of any banker’s acceptance or banker’s acceptance credit; provided, that (x) indebtedness of a Member of the Group to any other Member of the Group and (y) indebtedness that qualifies as Non-recourse Securitization Debt shall, in each case, not be deemed to be Indebtedness for purposes of Section 10.09 or any other purpose of the Indenture or the Securities.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, any such provisions of the Trust Indenture Act that are expressly stated herein to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
“Instructions” has the meaning specified in Section 1.05.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Investment Grade” means a rating of BBB- or higher by S&P or a rating of Baa3 or higher by Moody’s or the equivalent of such ratings.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the U.S. Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“Issue Date” means the date on which the Securities of the applicable Series are issued.
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“Legal Defeasance” has the meaning specified in Section 13.02.
“Lien” has the meaning specified in Section 10.09.
“Loan Financing” means any money borrowed from (A) a bank, financial institution, hedge fund, pension fund, or insurance company or (B) any other entity having as its principal business the lending of money and/or investing in loans, in each case other than public or quasi-public entities or international organizations with a public or quasi-public character.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Material Subsidiary” means (A) Stellantis Europe S.p.A. (and any other Person Controlled by the Company which Stellantis Europe S.p.A. is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (B) FCA US LLC (and any other Person Controlled by the Company which FCA US LLC is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (C) any Member of the Group the total assets or revenues of which on a stand-alone basis (excluding intra-Group items and as determined from the entity’s most recent financial statements on the basis of which the Company’s most recent audited consolidated financial statements were prepared) constitutes 10% or more of the consolidated total assets or revenues of the Group (as determined from the Company’s most recent audited consolidated financial statements); (D) any Treasury Subsidiary or (E) any entity under the Company’s direct or indirect Control that directly or indirectly Controls a Subsidiary that meets the requirements of the preceding Clauses (A), (B), (C) or (D), provided that if any such entity Controls such a Subsidiary only pursuant to the aggregate ownership test specified in the proviso to Clause (1) of the definition of “Control,” “Controls” or “Controlled” below, then, and only then, the Company shall have the right to designate which such entities shall be deemed to so Control such a Subsidiary provided that, in each case, such designated entities Control in the aggregate more than 50% of the relevant Subsidiary’s voting stock. For purposes of this definition of “Material Subsidiary,” (i) the term “Control,” “Controls” or “Controlled” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50% of the voting stock of a Person measured by voting power rather than number of shares, provided that to the extent that no single entity directly owns more than 50% of the voting stock of a Person, entities with aggregate direct or indirect ownership of more than 50% of the voting stock of a Person will be deemed to Control such Person or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a Person and (ii) no Financial Services Subsidiary shall be considered or deemed to be a Material Subsidiary. Notwithstanding the foregoing, a Subsidiary shall be considered or deemed to be a Material Subsidiary only to the extent that such is located or domiciled in an OECD Country (or, to the extent that the OECD or a successor organization no longer exists, the countries that were members of the relevant organization on the date such organization ceased to exist).
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“Member of the Group” means each of the Company and any direct or indirect Subsidiary it fully consolidates on the basis of which the Company’s most recent audited consolidated financial statements were prepared.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Non-recourse Securitization” means any securitization, asset backed financing, transfer or transaction having a similar effect of Securitizable Assets, for which (the issuers or borrowers do not provide recourse for credit losses other than Standard Securitization Undertakings.
“Non-recourse Securitization Debt” means any Indebtedness incurred by a Securitization Entity pursuant to a securitization of receivables where the recourse in respect of that Indebtedness to the Company is limited to:
A. those receivables and/or related insurance and/or any Standard Securitization Undertakings; and
B. if those receivables comprise all or substantially all of the business or assets of such Securitization Entity, the shares or other interests of any Member of the Group in such Securitization Entity; provided that any Indebtedness not qualifying as Non-recourse Securitization Debt solely because the extent of recourse to any Member of the Group with respect to such Indebtedness is greater than that provided in Clauses (A) and (B) above shall only not qualify as Non-recourse Securitization Debt with respect to the extent of such additional recourse.
“OECD” means the Organization for Economic Co-operation and Development.
“OECD Country” means a country that is a member of the OECD or any successor organization at the time of the occurrence of a payment default or acceleration specified in the Event of Default (or, to the extent that the OECD or a successor organization no longer exists, at the time the relevant organization ceased to exist).
“Officer” means, with respect to any Person, the chairman of the board, the chief executive officer, the chief financial officer, the president, any executive vice president, senior vice president or vice president, the treasurer or any assistant treasurer, the secretary or any assistant secretary for such Person, authorized to represent such Person in the relevant matter.
“Officer’s Certificate” means a certificate signed on behalf of the Company, by an Officer of the Company that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion from legal counsel, which may be an employee of or counsel to the Company.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
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“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company acts as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Legal Defeasance has been effected pursuant to Section 13.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount determined as provided in such Clause) and (D) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
“Par Call Date” has the meaning specified in Section 2.03.
“Payor” has the meaning specified in Section 2.03.
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“Paying Agent” means any Person (which may include the Company or the Trustee) authorized by the Company to pay the principal of or any premium or interest on any Securities on behalf of the Company.
“Permitted Liens” means:
A. Liens existing on the Issue Date;
B. Liens arising by operation of law, by contract having an equivalent effect, from rights of set-off arising in the ordinary course of business between the Company and any of its suppliers or customers, or from rights of set-off or netting arising by operation of law (or by contract having similar effect) by virtue of the provision to the Company of clearing bank facilities or overdraft facilities;
C. any Lien over:
(1) the receivables of a Securitization Entity (and any bank account to which such proceeds are deposited) which are subject to a Non-recourse Securitization as security for Non-recourse Securitization Debt raised by such Securitization Entity in respect of such receivables; and/or
(2) the shares or other interests owned by any Member of the Group in any Securitization Entity as security for Non-recourse Securitization Debt raised by such Securitization Entity provided that the receivables or revenues which are the subject of the relevant Non-recourse Securitization comprise all or substantially all of the business of such Securitization Entity;
D. any Liens on assets acquired by a Member of the Group after the Issue Date, provided that (i) such Lien was existing or agreed to be created at or before the time the relevant asset was acquired by a Member of the Group, (ii) such Lien was not created in contemplation of such acquisition, and (iii) the principal amount then secured does not exceed the principal amount of the committed financing then secured (whether or not drawn), with respect to such assets at the time the relevant asset was acquired by a Member of the Group;
E. any Lien created to secure all or any part of the purchase price, or to secure Quoted Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of construction, of property (or any improvement thereon) acquired or constructed by the Company after the Issue Date, provided, that (i) any such Lien shall extend solely to the item or items of property (or improvement thereon) so acquired or constructed and (ii) the principal amount of Quoted Indebtedness secured by any such Lien shall at no time exceed an amount equal to the fair market value of such property (or any improvement thereon) at the time of such acquisition or construction;
F. any Lien securing Quoted Indebtedness incurred to refinance other indebtedness itself secured by a Lien included in Clauses (A), (B), (D) or (E) above, but only if the principal amount of the Quoted Indebtedness is not increased and only the same assets are secured as were secured by the prior Lien;
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G. any Lien provided in favor of any bank or governmental (central or local), intergovernmental or supranational body, agency, department or other authority securing any of the Company’s Quoted Indebtedness under a loan scheme operated by (or on behalf of) Banco Nacional de Desenvolvimento Economico e Social, Finame, Banco de Minas Gerais, the United States Department of Energy, the United States Department of the Treasury, a member country of the OECD, Argentina, Brazil, China, India, South Africa or any supranational entity (such as the European Bank for Reconstruction and Development or the International Finance Corporation) where the provision of such Lien is required for the relevant loan; or
H. (i) any Lien created on the shares of capital stock of any of the Company’s subsidiaries, and (ii) any Lien created on the assets of any of the Company’s subsidiaries of the type described in Clause (E) above other than shares of capital stock of any of the Company’s subsidiaries.
“Person” means any individual, firm, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Peugeot Invest” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 562 075 390.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Qualifying Guarantee” means a direct or indirect guarantee in respect of any Indebtedness or a direct or indirect indemnity against the consequences of a default in the payment of any Indebtedness, other than, in each case, by endorsement of negotiable instruments, letters of credit or reimbursement agreements in the ordinary course of business.
“Quoted Indebtedness” means any Indebtedness in the form of, or represented by, bonds, notes, debentures, loan stock or other securities and which at the time of issue is, or is capable of being, quoted, listed or ordinarily dealt in on any stock exchange or over-the-counter market or other securities market (whether or not initially distributed by means of a private placement).
“Rating Agency ” means Moody’s or S&P (each as herein defined), or, if either such entity ceases to rate the Notes for reasons outside of the control of the Company, any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Rating Date” means (i) the date one Business Day prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only
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with respect to the type of transaction specified in clause (1) of the definition of Change of Control, the date one Business Day before the first public announcement of a definitive agreement with respect to such transaction and (ii) in the event that a Rating Agency has announced a Rating Decline of the Securities within 90 calendar days prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only with respect to the type of transaction specified in clause (1) of the definition of Change of Control, within 90 calendar days before the first public announcement of a definitive agreement with respect to such transaction, and the official statement issued by a Rating Agency announcing the Rating Decline refers to such event or transaction as a reason for such downgrade, the date one Business Day prior to such announcement by a Rating Agency.
“Rating Decline”, with respect to a series of Securities, means the occurrence on any date within the 90-calendar day period following the occurrence of the event specified in clauses (1) or (2) of the definition of a Change of Control (which period shall be extended so long as during such period any rating of the Securities of the applicable series is under publicly announced consideration for possible downgrade by a Rating Agency, provided that such extension shall not be for more than 30 calendar days) of: (i) in the event such Securities are rated by any Rating Agency on the Rating Date below Investment Grade (a) the rating of such Securities by such Rating Agency is downgraded by at least one rating category below the rating of such Securities by such Rating Agency on the Rating Date and not subsequently upgraded to its earlier rating (or better) by such Rating Agency within such period, or (b) such Securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate the earlier rating (or better) that it had assigned to such Securities during such period; or (ii) in the event such Securities are rated by any Rating Agency on the Rating Date as Investment Grade (a) the rating of such Securities by such Rating Agency is downgraded to below Investment Grade and not subsequently upgraded to Investment Grade by such Rating Agency within such period, or (b) such Securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate an Investment Grade rating to such Securities during such period, provided that: (x) any such decision of the relevant Rating Agency to downgrade or cease to rate such Securities referred to in paragraph (i) or (ii) above shall not be deemed to have occurred in respect of a particular Change of Control if such Rating Agency does not publicly announce or confirm that such decision was the result, in whole or in part, of the event specified in clauses (1) or (2) of the definition of a Change of Control; and (y) if at the time of the event specified in Clauses (1) or (2) of the definition of Change of Control such Securities are not rated by a Rating Agency, and no Rating Agency assigns an Investment Grade rating to such Securities within the 90-calendar day period following the occurrence of the event specified in clauses (1) or (2) of the definition of a Change of Control, a Rating Decline will be deemed to have occurred. In determining how many rating categories the rating of such Securities has decreased, gradation will be taken in account (e.g., with respect to S&P’s, a decline in a rating from BB+ to BB, or from BB to BB-, will constitute a decrease of one rating category).
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price (exclusive of any accrued interest) at which it is to be redeemed pursuant to this Indenture. The Trustee shall have no responsibility to calculate the Redemption Price.
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“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“Related Party” means (i) each of the owners and beneficial holders of interests in Giovanni Agnelli B.V. (at the Issue Date) and each of their spouses, heirs, legatees, descendants and blood relatives to the third degree, (ii) Giovanni Agnelli B.V., (iii) any Person directly or indirectly under the Control of Giovanni Agnelli B.V., (iv) Etablissements Peugeot Frères, (v) any Person directly or indirectly under the Control of Etablissements Peugeot Frères, (vi) Peugeot Invest, or (vii) any Person directly or indirectly under the Control of Peugeot Invest. For the purposes of this definition, the term “Control” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50% of the Voting Stock of a Person measured by voting power rather than number of shares or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a Person.
“Relevant Jurisdiction” has the meaning specified in Section 2.03.
“Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant vice president, assistant secretary, any senior associate, any associate, any trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, in each case having direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Securitizable Asset” means receivables, loans, installment sales contracts, leases and/or leased assets, and incidental assets related thereto (or any interests therein) or interests or securities representing or dependent on collection of any of the foregoing.
“Securitization Entity” means any special purpose vehicle created for the sole purpose of carrying out, or otherwise used solely for the purpose of carrying out a Non-recourse Securitization or any other Subsidiary which is effecting Non-recourse Securitization.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
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“Standard Securitization Undertaking” means representations, warranties, covenants, guarantees and indemnities entered into by any Member of the Group from time to time which are customary in relation to Non-recourse Securitization, including any payment or performance undertakings with respect to origination of servicing obligations or undertakings with respect to breaches of representations or warranties.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person: (1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) more than 50% of the outstanding capital stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other Subsidiary of such Person; and (2) any partnership, joint venture, limited liability company or similar entity of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, or (b) such Person is a controlling general partner or otherwise controls such entity.
“Substitute” has the meaning specified in Section 8.04.
“Substitution Documents” has the meaning specified in Section 8.03.
“Taxes” has the meaning specified in Section 2.03.
“Treasury Rate” has the meaning specified in Section 2.03.
“Treasury Subsidiary” means (A) Fiat Chrysler Finance Europe société en nom collectif, acting through its UK Branch (B) Stellantis Finance US Inc., and (C) any other Subsidiary of the Company the primary purpose of which is borrowing funds, issuing securities or incurring Indebtedness from third parties. For the avoidance of doubt, “Treasury Subsidiary” does not, and shall not be deemed to, include any Financial Services Subsidiary.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, including the rules promulgated thereunder, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended and any successor statute thereto.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
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“Voting Stock” of any Person as of any date means the capital stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an Officer of the Company or an Opinion of Counsel, if to be given by counsel, and shall in each case comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04) shall include,
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such Officer knows that the certificate or opinion or representations with respect to the matters upon which his certificate or opinion is based are erroneous. Any such certificate or opinion of, or representation by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company stating that the information with respect to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
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Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments, or record or both, are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Section 1.04.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof, or may be proved in such other manner as shall be deemed sufficient by the Trustee. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee or the Company, in reliance thereon, whether or not notation of such action is made upon such Security.
The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series; provided that the Company may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders
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of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may, in the circumstances permitted by the Trust Indenture Act, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any notice of default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section 1.04, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.04, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal
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amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee and the Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent to the Company, addressed to it at the address of its principal office specified in the first paragraph of this instrument, or at any other address previously furnished in writing to the Trustee by the Company. The Company or the Trustee by written notice to the others may designate additional or different addresses for subsequent notices or communications.
(3) the Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Persons”) and containing specimen signatures of such Authorized Persons, which incumbency certificate shall be amended by the Company whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company understands and agrees that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Person listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Person. The Company shall be responsible for ensuring that only Authorized Person transmit such Instructions to the Trustee and that the Company and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company agrees, other than, in each case, with respect to gross negligence or willful misconduct on the part of the Trustee arising out of or in connection with any such actions taken or omitted: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light
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of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be deemed to have been duly given (unless otherwise herein expressly provided including redemption notices to Holders pursuant to Article Eleven hereof) if in writing and sent to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. 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 regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail as contemplated herein, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its applicable procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not. All covenants and agreements of the Trustee in this instrument shall bind its successors and assigns.
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SECTION 1.10. Separability Clause.
In case any provision in this Indenture or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law; Waiver of Jury Trial.
This Indenture and the Securities shall be governed by and construed in accordance with the law of the State of New York. EACH OF THE COMPANY, THE HOLDERS 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 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security established as contemplated by Section 3.01 and which specifically states that such provision shall apply in lieu of this Section 1.13) payment of interest or principal (and premium, if any) 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 Interest Payment Date or Redemption Date, or at the Maturity; provided that no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be to the date of such payment (unless otherwise provided).
SECTION 1.14. Authorized Agent; Submission to Jurisdiction; Waiver of Immunity.
(1) By the execution and delivery of this Indenture the Company (i) acknowledges that it will, by separate written instrument, designate and appoint Fiat Chrysler Finance North America Inc., 1000 Chrysler Drive, Auburn Hills, MI 48326 (the “Authorized Agent”) (and any successor entity) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Indenture that may be instituted in any U.S. federal or state court in the State of New York, New York County or brought under U.S. federal or state securities laws, and acknowledge that the Authorized Agent will accept such designation, (ii) submits itself and its property to the non-exclusive jurisdiction of any such court in any such suit or proceeding, (iii) consent that any such proceeding may be brought in any such court and any objection that it may now or hereafter have to the venue of any such proceeding in any such court or that such proceeding was brought in any inconvenient court and agrees not to plead or claim the same, (iv) agrees not to dispute that such service of process upon the Authorized Agent
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and written notice of said service to the Company in accordance with Section 1.05 will be in every respect effective service of process upon the Company in any such suit or proceeding and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(2) To the extent that the Company may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to or arising out of this Indenture, to claim for itself or its revenues, assets or properties immunity (whether by reason of sovereignty or otherwise) from suit, from the jurisdiction of any court (including but not limited to any court of the United States of America or the State of New York), from attachment prior to judgment, from setoff, from execution of a judgment or from any other legal process, and to the extent that in any such jurisdiction there may be attributed such an immunity (whether or not claimed), the Company hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity to the extent permitted by law.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article Two, or in such other form as shall be established from time to time by or pursuant to a Board Resolution and, subject to Section 3.03, determined in the manner provided in the Officer’s Certificate of the Company or established 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 or any indentures supplemental hereto, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this instrument, or as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Face of Security.
The Securities shall be in substantially the following form:
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
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CUSIP No.
[Title of Security]
No. $ .
STELLANTIS N.V.
Stellantis N.V., a public company with limited liability (naamloze vennootschap) incorporated under Dutch law (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ___________, or registered assigns, the principal sum of ______________ U.S. dollars on ______________[if this Security is to bear interest prior to Maturity, insert – , and to pay interest thereon from __________or the most recent Interest Payment Date to which interest has been paid or duly provided for, [semi-annually] in arrears on ________ and ________ in each year, commencing __________, at the rate of % per annum, until the principal hereof is paid or made available for payment, [if applicable, insert – provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be _________ or __________ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest so payable, but not punctually paid or duly provided for, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert – The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ____ % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment.]
Payment of the principal of (and premium, if any) and [if applicable, insert – any such] interest on this Security shall be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date); provided, however, that at the option of the Company payment of interest may be made (1) by
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check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (2) by wire transfer in immediately available funds at the bank account number maintained within the United States as may be designated by the Person entitled thereto, as specified in the Security Register in writing; and provided, further, that if this Security is a Global Security, payment shall be made pursuant to the applicable procedures of the Depositary as permitted in the Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an authentication agent on its behalf referred to on the reverse hereof by manual or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by manual or electronic signature by a duly authorized Officer of the Company.
Dated __________
STELLANTIS N.V.,
as the Company
By: _________________________
SECTION 2.03. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company of this series (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of , 20 (the “Indenture”), between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert – [initially] limited in an aggregate principal amount to $__________, [provided that the Company may, without the consent of any Holder, at any time and from time to time increase the initial principal amount.] Unless otherwise defined, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Save for any provision as to withholding or deduction of taxes, no reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium
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and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
[If applicable, insert – In the event that the Company becomes obligated to make payments in respect of the Securities, the Company shall make all payments of principal of (and premium, if any, on), interest on (whether on scheduled payment dates or upon acceleration) any Securities, free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed, collected, withheld, assessed or levied by or on behalf of any jurisdiction in which the Company, a Paying Agent, or any other Person on behalf of the Company, or any successor thereto (each, a “Payor”) is incorporated, organized or tax resident, or any governmental authority or political subdivision thereof or therein having the power to tax (a “Relevant Jurisdiction”), unless the withholding or deduction of the Taxes is required by law of any Relevant Jurisdiction.
Where the withholding or deduction of Taxes is required by the law of any Relevant Jurisdiction, the Payor will, subject to the exceptions and limitations set forth below, pay as additional interest on the Securities such additional amounts (“Additional Amounts”) as are necessary so that the net payment by the Company or a paying agent or other Payor of the principal of and interest on such Securities, after deduction for any present or future tax, assessment or governmental charge of a Relevant Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount that would have been payable in respect of such Securities had no withholding or deduction been required. Any obligation to pay Additional Amounts shall not apply:
(1) to any Taxes that are only payable because a present or former type of connection exists or existed between the Holder or beneficial owner of the Securities and a Relevant Jurisdiction other than a connection related solely to purchase, ownership or mere holding of the Securities or the receipt of principal or interest in respect of it;
(2) [to any Taxes that are imposed or withheld by the United States of America solely because the beneficial owner, or a fiduciary, settlor, beneficiary or member of the beneficial owner if the beneficial owner is an estate, trust or partnership, or a person holding a power over an estate or trust administered by a fiduciary holder:
a. is or was a citizen or resident or is or was treated as a resident of the United States of America;
b. is or was a personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States of America or is or was a corporation that has accumulated earnings to avoid United States of America federal income tax;
c. is or was a bank receiving interest described in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”);
d. is or was an actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company entitled to vote; or
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e. is or was subject to tax under Section 4948(a) of the Code;]
(3) to any Holder of the Securities that is not the sole beneficial owner of such Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that the beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(4) to any Taxes that are imposed or withheld because the beneficial owner of the Securities or any other person failed to accurately comply with a request from the Company or any paying agent to meet certification, identification or information reporting requirements concerning the nationality, residence or identity of the Holder or beneficial owner of the Securities or to satisfy any information or reporting requirement, or to present the relevant Security (if certificated), if compliance such action is required as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge by the Relevant Jurisdiction;
(5) to any Taxes that are imposed other than by withholding or deduction by the Company or a paying agent from the payment;
(6) to any Taxes that are imposed or withheld solely because of a change in law, regulation, or administrative or judicial interpretation that becomes effective after the day on which the payment becomes due or is duly provided for, whichever occurs later;
(7) to any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or similar Taxes;
(8) to any Taxes any paying agent (which term may include the Company) must withhold from any payment of principal of or interest on any Securities, if such payment can be made without such withholding by any other paying agent;
(9) to any Taxes imposed pursuant to the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021); or
(10) in the case of any combination of the above items.
In addition, any amounts to be paid on the Securities shall be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no Additional Amounts shall be required to be paid on account of any such deduction or withholding.
Whenever in this Security or the Indenture there is mentioned, in any context other than the case of Section 5.02 of the Indenture, the payment of principal (and premium, if any) [if applicable, insert - the Redemption Price, if any,] interest or any other amount payable under or
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with respect to the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context Additional Amounts are, were or would be payable by the Company in respect thereof.]
[If applicable, insert – Prior to ____________ (the “Par Call Date”), the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Securities matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus _____ basis points, less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Securities to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a Redemption Price equal to _____% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
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If on the third Business Day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption shall be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of Securities to be redeemed except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of the Indenture.
In the case of a partial redemption, selection of the Securities for redemption shall be made by lot. For so long as the Securities are held by DTC, Euroclear or Clearstream (or another depositary), the redemption of the Securities shall be done in accordance with the policies and procedures of the depositary.]
[If applicable, insert – The Securities are subject to redemption upon not less than ___days’ nor more than ___ days’ notice, [if applicable, insert – (1) on _____________ in any year commencing with the year __________ and ending with the year __________ through operation of the sinking fund for this series at a Redemption Price equal to ___% of the principal amount, and (2)] at any time [if applicable, insert – on or after ________, 20 ____ ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed during the 12-month period beginning _______ of the years indicated,
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ____% of the principal amount, together in the case of any such redemption [(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is
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on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert – If (a) a Payor becomes or shall become obligated to pay Additional Amounts with respect to any Securities as result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction, or any change in the official interpretation of the laws or regulations of a Relevant Jurisdiction, which change or amendment becomes effective after _______, 20___, and (b) such obligation cannot be avoided by the Company taking reasonable measures available to the Company, the Company may, at its option, having given not less than ___ days notice to the Holders of such Securities (which notice shall be irrevocable), redeem all, but not a portion of, the Securities at any time at ___ % of their principal amount, plus accrued but unpaid interest to, but excluding, the Redemption Date; provided that no such notice of redemption shall be given earlier than ___ days prior to the earliest date on which the applicable Payor would be obliged to pay such Additional Amounts were a payment in respect of the Securities then due. Prior to the delivery of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee (i) an Officer’s Certificate stating that the requirements referred to in (a) and (b) above are satisfied, and (ii) an Opinion of Counsel to the effect that the applicable Payor has or will become obliged to pay such Additional Amounts as a result of the change or amendment, in each case to be held by the Trustee and made available for viewing at the offices of the Trustee on written request by any Holder of the Securities.]
[If applicable, insert – The sinking fund for this series provides for the redemption on __________ in each year beginning with the year __________ and ending with the year __________ of [if applicable, insert – not less than $__________ (“mandatory sinking fund”) and not more than] $__________ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert – mandatory] sinking fund payments may be credited against subsequent [if applicable, insert – mandatory] sinking fund payments otherwise required to be made [if applicable, insert – , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert – On and after the Redemption Date, interest shall cease to accrue on the Securities or any portion of the Securities called for redemption, unless the Company defaults in the payment of the Redemption Price and accrued interest. On or before the Redemption Date, the Company shall deposit with a Paying Agent or the Trustee money sufficient to pay the Redemption Price of and accrued interest on the Securities to be redeemed on that date. The Trustee shall not be responsible for determining or calculating the Redemption Price of the Securities or the Treasury Rate.
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert – The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.]
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[If the Security is not an Original Issue Discount Security, insert – If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert – If an Event of Default with respect to the Securities shall occur and be continuing, an amount of principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [– insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding. The Indenture also contains provisions (i) permitting the Holders of not less than a majority of the aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company with certain provisions of the Indenture with respect to such Securities and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding, on behalf of the Holders of the Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of at least 25% of the principal amount of the Securities at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Securities at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one
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or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $__________ and any integral multiples of $_______ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Trustee and any such agent shall be affected by notice to the contrary.
[If applicable, insert – Except in the limited circumstances described in Section 3.05 of the Indenture, the Securities shall be issued in the form of one or more Global Securities and [____________] shall be the Depositary for such Global Securities.]
[If applicable, insert – Interest on the principal balance of this Security shall be calculated on the basis of a [365- or 366-day year, as appropriate, for the actual number of days elapsed] [360-day year of twelve 30-day months.]]
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.04. Securities in Global Form.
If any Security of a series is issuable in global form, such Global Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Global Security.
Global Securities may be issued in either temporary or permanent form. Permanent Global Securities will be issued in definitive form.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
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THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.05. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK MELLON,
as Trustee
By: [______________________________]
Authorized Signatory
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ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officer’s Certificate of the Company or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(2) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(3) the date or dates on which the principal and any premium of any Securities of the series are payable or the method of determination thereof;
(4) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(5) the rate or rates (which may be fixed or variable), or the method of determination thereof, at which any Securities of the series shall bear interest, if any, including the rate of interest applicable on overdue payments of principal or interest, if different from the rate of interest stated in the title of the Security, the date or dates from which any such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date, if any, for any such interest payable on any Interest Payment Date and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30 day months;
(6) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the manner in which any payment may be made;
(7) the period or periods within which, the price or prices at which, the currency, currencies, currency unit or composite currency in which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
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(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, the currency, currencies, currency unit or composite currency in which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to a financial or economic measure or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies, currency units or composite currency in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for the purposes of making payment in the currency of the United States of America and applying the definition of “Outstanding” in Section 1.01;
(12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies, currency units or composite currencies other than that or those in which such Securities are stated to be payable, the currency, currency units or composite currencies in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or, if applicable, the portion of the principal amount of Securities of the series that is convertible in accordance with the provisions of this Indenture, or the method by which such portion shall be determined;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other indices), the manner in which such amounts shall be determined;
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(16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
(17) whether and under what circumstances, if any, the Company will pay Additional Amounts as contemplated by Section 10.08 on the Securities of the series to any Holder in respect of any tax, assessment or governmental charge and, if so, whether and under what circumstances, if any, the Company will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
(18) if applicable, that the Securities of the series, shall be subject to either or both of Legal Defeasance or Covenant Defeasance as provided in Article Thirteen;
(19) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any addition to, elimination of or other changes in the circumstances set forth in Clause (2) of the last paragraph of Section 3.05(a) in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(20) any addition to, elimination of or other change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(21) any addition to, elimination of or other change in the covenants set forth in Article Ten or elsewhere herein which applies to Securities of the series;
(22) the terms and conditions, if any, pursuant to which the Securities are convertible or exchangeable for Common Shares or other securities; and
(23) any other terms of the series (in compliance with the provisions of this Indenture, including as permitted by Section 9.01).
All Securities of any one series shall be substantially identical, whether or not Securities of such series have been registered under the Securities Act or any state securities law, except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at one time and, unless otherwise provided or contemplated by this Section 3.01 with respect to a series of Securities, additional Securities of a series may be issued at the option of the Company, without the consent of any Holder, at any time and from time to time; provided that, if the additional Securities of a series do not trade fungibly with the other Securities of such series, whether due to registration or absence of registration under the Securities Act, the initial interest period or otherwise, the additional Securities shall have a separate CUSIP number. To the extent any terms of a series of Securities
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established as provided or contemplated by this Section 3.01 shall be inconsistent with any provisions of this Indenture, such terms shall supersede the inconsistent provisions of this Indenture for all purposes related to such series of Securities.
If any of the terms of the series are established by action taken pursuant to a Board Resolution of the Company, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by at least one Officer of the Company. The signature of any of these Officers on the Securities may be manual or electronic.
Securities bearing the manual or electronic signatures of individuals who were at any time the proper Officers of the Company shall bind the Company notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of issuance of such Securities.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities and an Officer’s Certificate delivered in accordance with Section 1.02, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section 3.03 and Section 3.04, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivered in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating in effect that,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
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(2) if the terms of such Securities have been established by or pursuant to a Board Resolution, that such terms have been established in conformity with the provisions of this Indenture; and
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, including where the size of an Outstanding series of Securities is increased as contemplated in Section 3.01, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which are printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.
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If temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register” although in no circumstances shall the register be kept in the United Kingdom) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or
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exchange of Securities, other than exchanges pursuant to Sections 3.04, 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the giving of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (C) issue, register the transfer of or exchange any Security that has been surrendered for repayment at the option of the Holder, except the portion, if any, of the Security that is not to be repaid.
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, any indenture supplemental hereto, the Securities 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 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, any indenture supplemental hereto and the Securities, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security and the Company does not appoint another institution to act as Depositary within 90 days or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and a Holder of the series of Securities represented by such Global Security requests registered Securities or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
(3) Subject to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global
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Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 3.05, Sections 3.04, 3.06, 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(5) Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them, and any of their respective agents harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
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SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest or, if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 10:00 a.m., New York City time, on such date.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities are payable (except as otherwise established as contemplated by Section 3.01 in respect of such Securities) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause (1) provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause (2), such manner of payment shall be deemed practicable by the Trustee.
Except as may be provided in this Section 3.07 or as contemplated in Section 3.01 with respect to any Securities of a series, the Person to whom interest shall be payable on any Security
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that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid.
Subject to the foregoing provisions of this Section 3.07, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee and any of their respective agents shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Trustee and any of their respective agents shall be affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion, registration of transfer or exchange or for credit against any sinking fund payment or analogous obligation shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it in accordance with its customary procedures. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as reasonably directed by a Company Order in accordance with the Trustee’s customary procedure; provided, however, that the Trustee shall not be required to destroy such cancelled Securities.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers, and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such numbers.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of any Security expressly provided for herein or in the terms of such Security), and the Trustee, upon receipt of Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of a series theretofore authenticated and delivered (other than (i) Securities of such series which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities of a series not theretofore delivered to the Trustee for cancellation (other than Securities of a series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06), for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; and
(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company in respect of such Securities;
(3) no default or Event of Default then exists; and
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(4) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, with respect to Securities of any series pursuant to this Section 4.01, the obligations of the Company to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to sub-Clause (B) of Clause (1) of this Section 4.01 and the obligations of the Trustee under Section 4.02, in each case with respect to such Securities, shall survive.
SECTION 4.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless otherwise provided in an Officer’s Certificate of the Company or any indenture supplemental hereto creating such series of Securities pursuant to Section 3.01 of this Indenture:
(1) default of the Company for 5 days or more in the payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Securities of such series;
(2) default of the Company for 30 days or more in the payment when due of interest or any Additional Amounts payable on or with respect to Securities of such series;
(3) failure of the Company to comply with its obligations set forth in Section 8.01 with respect to Securities of such series;
(4) failure of the Company to comply for 60 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of least 25% in principal amount of
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Securities of such series then Outstanding with the Company’s obligation to make a Change of Control Offer as described under Section 10.10 with respect to Securities of such series;
(5) failure of the Company to comply for 90 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in principal amount of the Securities of such series then Outstanding with any of its other obligations, covenants or agreements contained in this Indenture or Securities of such series;
(6) the Indebtedness of the Company or the Indebtedness of a Material Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds €250 million; provided, however, that it shall be deemed not to be an Event of Default if such Indebtedness is paid or otherwise acquired or retired (or for which such failure to pay or acceleration is waived or rescinded) within 30 Business Days after such failure to pay or such acceleration;
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(8) the commencement by the Company of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the admission by the Company in writing of its inability to pay its debts generally as they become due, or the taking of corporate action by the Company in furtherance of any such action; or
(9) any other Event of Default provided with respect to Securities of such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment; Waiver of Existing Default.
If any Event of Default (other than of a type specified in Section 5.01(7) or Section 5.01(8) with respect to the Company occurs and is continuing under this Indenture with respect to the Securities of any series, the Trustee or the holders of at least 25% in aggregate principal
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amount of the Securities of that series then Outstanding may declare the principal, premium, if any, interest and any other monetary obligations on all the then Outstanding Securities of that series to be due and payable immediately. Upon the effectiveness of such declaration, such principal and interest shall be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising under Section 5.01(7) or Section 5.01(8), all Outstanding Securities of that series will become due and payable without further action or notice. The Trustee may withhold from the Holders notice of any continuing default, except a default relating to the payment of principal, premium, if any, or interest, if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that withholding notice is in the Holders’ interest.
The Holders of a majority in aggregate principal amount of the then Outstanding Securities of that series by notice to the Trustee may, on behalf of the Holders of all of the Securities of that series, waive any existing default with respect to the Securities of that series and its consequences thereof under this Indenture (except a continuing default in the payment of interest on, premium, if any, or the principal of any Securities of that series held by a non-consenting Holder) and rescind any acceleration with respect to the Securities of that series and its consequences (except if such rescission would conflict with any judgment of a court of competent jurisdiction). In the event of any Event of Default specified in Section 5.01(6), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the applicable series of Securities) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose: (i) the indebtedness that is the basis for such Event of Default has been discharged; (ii) Holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (iii) the default that is the basis for such Event of Default has been cured.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on or Additional Amounts payable in respect of any Security when such interest or Additional Amounts becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 5 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
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Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or any other judicial proceeding relative to the Company, its property or creditors, the Trustee (irrespective of whether the principal of the 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 on the Company for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (1) to file and prove a claim for the whole amount of principal and premium, if any, and interest owning and unpaid in respect of the Securities 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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may (but shall be under no obligation to unless directed in writing by the Holders), on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
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money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, including its agents and attorneys, in connection with the Securities under this Indenture;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest and any Additional Amounts payable on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively, and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its successors or assigns, or to whomever may be so lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture or the Securities, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then Outstanding Securities of that series have requested the Trustee to pursue the remedy;
(3) Holders of the Securities of that series have offered the Trustee security and/or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) and Holders of a majority in aggregate principal amount of the then Outstanding Securities of that series have not given the Trustee a direction inconsistent with such request within such 60-day period;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
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SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of each affected series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that:
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(1) The Trustee may refuse to follow any such direction that conflicts with any rule of law or with this Indenture or that the Trustee determines is unduly prejudicial to the rights of other Holders of the affected series or would involve the Trustee in personal liability; and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of each affected series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected series.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 5.14 nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee or to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(1) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(2) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions 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).
(3) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (2) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(4) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (1), (2) and (3) of this Section 6.01.
(5) None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
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(6) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 6.02. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series and written notice of such default is provided to a Responsible Officer of the Trustee, the Trustee shall give the Holders of Securities of such series notice of such default within 90 days after such written notice is received by such Responsible Officer; provided, however, that in the case of any default of the character specified in Section 5.01(8) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 6.02, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney, at the sole cost of the Company, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(2) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both subject to the other provisions of this Indenture. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon
(3) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company shall be sufficient if signed by an Officer of the Company. The Trustee shall not have any duty to inquire as to the performance of the Company’s covenants herein.
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(6) The Trustee shall not be under any obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Securities unless it receives indemnity and/or security satisfactory to it against any loss, liability or expense which might be incurred by it in compliance with such request or direction.
(7) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(8) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and by each agent, custodian and other Person employed to act hereunder.
(9) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties.
(10) 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 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.
(11) The Trustee may request that the Company deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(12) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(13) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities and this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities. Neither the
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Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.07. Compensation and Reimbursement.
(1) The Company agrees (i) to pay to the Trustee from time to time such compensation as the Company and the Trustee shall, from time to time, agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and (iii) to indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense (including, but not limited to, the reasonable compensation and the expenses and disbursements of its agents and counsel, and taxes levied other than taxes (including income, capital, franchise taxes) levied because of a connection between the Trustee and the jurisdiction levying the tax other than a connection arising solely as a result of the Trustee performing its obligations under this Indenture)) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Securities, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under the Indenture and the Securities.
(2) To secure the Company’s payment obligations in this Section 6.07, the Trustee will have a lien prior to the Securities on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, and interest on particular Securities.
(3) The obligations of the Company under this Section 6.07 shall survive the payment of the Securities, the satisfaction and discharge of the Indenture and the resignation or removal of the Trustee.
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(4) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(7) or Section 5.01(8), 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 bankruptcy, insolvency or other similar law.
SECTION 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 6.09 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 6.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company at least 30 days prior to such resignation. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, with written notice of such action delivered to the Trustee and to the Company 30 days prior to the Trustee’s removal.
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If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company by or pursuant to a Board Resolution may remove the Trustee with respect to all Securities or the Securities of any series upon providing 30 days’ written notice to the Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security of any 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 with respect to all Securities of such series and the appointment of a successor Trustee or Trustees with respect thereto.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company or the Holders and accepted appointment in the manner required by Section 6.11, subject to Section 5.14, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, or the retiring Trustee, at the expense of the Company, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give written notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice of such appointment shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate
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Trust Office. Notices of resignation, removal and appointment may be combined into a single notice.
SECTION 6.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its outstanding fees (including, but not limited to, reasonable attorney’s fees and expenses), execute and deliver an instrument (in form and substance reasonably satisfactory to the parties executing the same) transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto (in form and substance reasonably satisfactory to the parties executing the same) wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on the request of the Company or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all
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such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article Six.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against the Company.
If and when the Trustee shall be or become a creditor of the Company or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or any such other obligor.
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon original issue and upon exchange, registration of transfer, or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and shall at all times be a Person organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by U.S. federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.14, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 6.14.
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Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section 6.14, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee for such series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to time such reasonable compensation for its services under this Section 6.14 as the Company and the Authenticating Agent shall from time to time agree in writing.
If an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON
As Trustee
By: [______________________________]
As Authenticating Agent
By: [______________________________]
Authorized Signatory
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record Date for Securities of each series at the time Outstanding, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. For so long as the Trustee acts as Security Registrar, the Company’s obligation to deliver reports shall conclusively be deemed satisfied.
SECTION 7.02. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee shall otherwise comply with Trust Indenture Act Section 312(a). If the Trustee is not the Security Registrar, the Company shall furnish to the Trustee at least two Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities and the Company shall otherwise comply with Trust Indenture Act Section 312(a).
The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that none of the Company, the Trustee or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
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The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted within 60 days after April 15 of each year commencing with the first April 15 after the first date of issuance of Securities.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange or of any delisting thereof.
SECTION 7.04. Reports by the Company.
The Company shall, if the Company is subject to the reporting requirements of either Section 13 or 15(d) of the Exchange Act, either (a) file with the Commission or (b) deliver to the Trustee such annual reports and information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to foreign private issuers subject to such Sections within the time periods prescribed for foreign private issuers.
If at any time, the Company is not subject to the periodic reporting requirements of the Exchange Act but continues to be required to file periodic reports with the Netherlands Authority for Financial Markets (Autoriteit Financiële Markten) pursuant to Section 2:394 of the Dutch Civil Code, in conjunction with the Dutch Financial Supervision Act (Wet op het financieel toezicht) or with any other regulatory authority of a member state of the European Union or the United Kingdom pursuant to laws and regulations then applicable to the Company, the Company shall either (a) file with such regulatory authority or (b) deliver to the Trustee such annual reports and information, documents and other reports as are required to be filed by the Company under such laws and regulations.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants pursuant to Article Ten (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS; SUBSTITUTION
SECTION 8.01. Company May Consolidate, Etc., Only on Certain Terms.
The Company is generally permitted to consolidate or amalgamate with or merge with or into, or sell, transfer, or lease or convey all or substantially all of its properties and assets to another Person. However, the Company shall not consolidate or amalgamate with or merge into any other Person, or convey, transfer or lease all or substantially all of its assets to any other Person, unless:
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(1) When the Company merges or consolidates out of existence or sells or leases its properties and assets substantially as an entirety, the other company or firm must be organized under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof, the U.K., Canada or any province thereof, Japan, Switzerland, or any member state of the European Union or any political subdivision thereof;
(2) The Person the Company merges with or into, or consolidates out of existence with, or sells or leases its properties or assets substantially as an entirety to, shall by an indenture supplemental to the Indenture, executed and delivered to the Trustee, expressly assume, the due and punctual payment of the principal of and any premium and interest on all Securities, and the performance or observance of every covenant of the Indenture on the part of the Company to be performed or observed;
(3) The consolidation, merger or sale of assets must not cause a default on the Securities, and the Company must not already be in default (unless the merger or other transaction would cure the default). For purposes of this no-default test, a default would include an Event of Default that has occurred and not been cured. A default for this purpose would also include any event that would be an Event of Default if the requirements for giving the Company default notice or the Company’s default having to exist for a specific period of time were disregarded.
This Section 8.01 shall not restrict any transaction other than a consolidation, amalgamation, merger, conveyance or lease as specified above.
SECTION 8.02. Successor Substituted.
If the Company amalgamates or consolidates with or merges with or into any other Person, or sells, transfers, or leases or conveys all or substantially all of its properties and assets to another Person, in each case pursuant to Section 8.01, the successor Person in any such transaction shall succeed to, and be substituted for, and may exercise every right and power of, the Company under this Indenture and the Securities, and the Company, as the predecessor Person, except in the case of a lease, shall be released from all of its obligations under this Indenture and the Securities.
SECTION 8.03. Substitution of the Company.
The Company, or any previous substituted company, may at any time, without the consent of the Holders of the Securities of the relevant series, substitute for itself as principal debtor under the Securities any company (the “Substitute”) that is a Treasury Subsidiary, provided that no Event of Default has occurred in respect of the Securities of that series and no payment in respect of such Securities is at the relevant time overdue. The substitution shall be made by an indenture supplemental to this Indenture and may take place only if:
(1) [the Substitute, failing which, Stellantis N.V. (or any successor thereto), agrees, in the indenture supplemental to this Indenture, to indemnify each holder of the Securities of the relevant series against (A) any tax, duty, assessment or governmental charge which is imposed on such holder by (or by any subdivision or authority having power to tax in or of) the jurisdiction of the country of the Substitute’s residence for tax purposes and, if different, of its
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incorporation with respect to any Security that would not have been so imposed had the substitution not been made and (B) any cost or expense relating to the substitution;]
(2) all the provisions set forth in this Indenture with respect to the Company shall apply to the Securities of that series following the substitution as if such Securities were originally issued by the Substitute;
(3) the obligations of the Substitute under the indenture supplemental to this Indenture and the Securities of the relevant series shall be irrevocably and unconditionally guaranteed by Stellantis N.V. (or any successor thereto), on the same terms as Stellantis N.V.’s guarantee of the debt securities of Stellantis Finance US Inc. pursuant to the indenture referred to in Schedule 803, by means of the indenture supplemental to this Indenture;
(4) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) to ensure that (A) the indenture supplemental to this Indenture and the Securities of the relevant series, and such other documentation as may be necessary to be executed by the Substitute and any previous substituted company, as the case may be, to effect the substitution represent valid, legally binding and enforceable obligations of the Substitute and (B) the indenture supplemental to this Indenture and such other documentation as may be necessary to be executed by Stellantis N.V. (or any successor thereto) to effect the substitution represent valid, legally binding and enforceable obligations of Stellantis N.V. (or any successor thereto) have been taken, fulfilled and done and are in full force and effect (such documents in Clause (A) and Clause (B) together, the “Substitution Documents”);
(5) in order to effect the substitution, the Substitute shall have become party to the Indenture, with any appropriate consequential amendments, as if it had been an original party to it;
(6) legal opinions, subject to customary assumptions and qualifications, addressed to the Trustee shall have been delivered to it from lawyers or firms of lawyers with leading securities practices in the Netherlands as to the due authorization, execution and delivery of the Substitution Documents by Stellantis N.V., in the jurisdiction of incorporation of the Substitute as to the due authorization, execution and delivery of the Substitution Documents by the Substitute, and in the jurisdiction of incorporation of any previous substituted company, if applicable, as to the due authorization, execution and delivery of the Substitution Documents by such previous substituted company and in the United States of America as to the validity, legally binding effect and enforceability of the Substitution Documents, as well as an Officer’s Certificate as to compliance with the provisions set forth in this Section 8.03; and
(7) the Company shall have given at least 14 days’ prior notice of such substitution to the Trustee and the Holders of the Securities of the relevant series.
Upon the execution of the indenture supplemental to this Indenture by all parties thereto and the satisfaction of the other conditions set out herein and the indenture supplemental to this Indenture, the Substitute shall succeed to and be substituted for the Company under the Securities of the relevant series and the Indenture with the same effect as if it had been named as the Company therein and Stellantis N.V. (or any successor thereto) shall become the guarantor as if the Securities had been originally guaranteed by Stellantis N.V. For the avoidance of doubt,
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following substitution in accordance herewith, the original issuer (which may be Stellantis N.V. (or any successor thereto) or any previous substituted company, as the case may be) shall cease to be the issuer under the Securities of that series and shall be relieved of all of its obligations and covenants under this Indenture and the Securities of such series as the issuer of such Securities, and any such substitution shall not, of itself, trigger an Event of Default or constitute an event set forth in Section 8.01.
Following substitution, references in Article Five to obligations under the Securities shall be deemed to include obligations under the indenture supplemental to this Indenture, and the events listed in Article Five shall be deemed to include that guarantee not being (or being claimed by the guarantor not to be) in full force and effect.
SECTION 8.04 Holders’ Consent Regarding Substitution.
By acquiring an interest in any Securities, each Holder or beneficial owner of the Securities is deemed to irrevocably: (i) consent in advance to the substitution of the Company or any Treasury Subsidiary, as the case may be, as issuer by a Treasury Subsidiary to the extent carried out pursuant to, and in compliance with the Indenture; (ii) following any such substitution, consent to the release of the Company, or any Treasury Subsidiary, as the case may be, which has been so substituted as issuer from any and all obligations in respect of the Securities and any relevant agreements (other than as set out in any agreements relating to the relevant substitution) and are deemed to have accepted such substitution and the consequences thereof. Any substitution shall be effected without cost or charge to the holders of Securities.
In the event the jurisdiction of incorporation of the substitute obligor is not the United States of America or the Netherlands, as the case may be, such substitute obligor will also agree to be bound to the obligations set forth in Section 10.08 but shall substitute the successor’s or substitute obligor’s jurisdiction of incorporation for the United States of America or the Netherlands, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency that does not materially adversely affect the rights of the Holders;
(2) to provide for uncertificated Securities in addition to or in place of certificated Securities;
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(3) to comply with Article Eight;
(4) to provide for the assumption of the Company’s obligations to the Holders;
(5) to make any change that would provide any additional rights or benefits to the Holders or that, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate, does not materially adversely affect the legal rights under this Indenture of any such Holder;
(6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company;
(7) to comply with requirement of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(8) to evidence and provide for a successor to the Company and the assumption by any such successor of the covenants under this Indenture and the Securities;
(9) to conform the text of this Indenture or the forms or terms such series of Securities issued hereunder to any provision of the “Description of Notes” section of the relevant offering document of such series to the extent that such provision in such “Description of Notes” was intended to be a verbatim recitation of a provision of this Indenture, as provided in an Officer’s Certificate;
(10) to secure the Securities;
(11) to establish the form or terms of Securities of any series as permitted by Sections 2.01 and 3.01;
(12) 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 6.11;
(13) to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to comply with the rules or regulations on any securities exchange or automated quotation system on which any of the Securities may be listed or traded;
(14) to eliminate any conflict between the terms hereof and the Trust Indenture Act or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action pursuant to this Clause (14) shall not adversely affect the interests of the Holders of Securities of any series in any material respect, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate; or
(15) to supplement any of the provisions of the Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Articles Four and Fourteen; provided that any such action shall not adversely affect the
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interests of the Holders of such series or any other series of Securities in any material respect, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of any series affected by such supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by a Board Resolution, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) reduce the principal amount of or change the fixed final maturity of any series of Securities or alter or waive the provisions with respect to the redemption of such series of Securities;
(2) reduce the rate of or change the time for payment of interest on any series of Securities;
(3) waive a default in the payment of principal of or premium, if any, or interest on any series of Securities (except a rescission of acceleration of the Securities of such series by the Holders of at least a majority in aggregate principal amount of such series of Securities and a waiver of the payment default that resulted from such acceleration) or in respect of a covenant or provision contained in this Indenture which cannot be amended or modified without the consent of all affected Holders;
(4) make any Security payable in money other than that stated therein;
(5) make any change in the provisions of this Indenture relating to waivers of past defaults or the rights of Holders to receive payments of principal of or premium, if any, or interest on the Securities;
(6) make any change in these amendment and waiver provisions;
(7) impair the right of any Holder to receive payment of principal of, or interest on such Holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities; and
(8) make any change to the ranking of a series of Securities that would materially adversely affect the rights of Holders of the Securities of such series.
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 the Holders of Securities of such series with
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respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that, unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate 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 Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture Act have the meanings assigned to them.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
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Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency by Company.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.01, the Corporate Trust Office of the Trustee or any Paying Agent shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor; provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the applicable procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
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SECTION 10.03. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
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SECTION 10.04 Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after the date hereof, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if any such default shall have occurred, describing all such defaults of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).
When any default has occurred and is continuing under this Indenture, the Company shall promptly (which shall be no more than five (5) Business Days) deliver to the Trustee by registered or certified mail or by electronic transmission an Officer’s Certificate specifying such event and what action the Company proposes to take with respect thereto.
SECTION 10.05 Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if its Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not materially disadvantageous to the Holders of Outstanding Securities.
SECTION 10.06. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the income, profits or property or the income, profits or property of the Company or any of its Subsidiaries, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 10.07. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of a specific series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(21), 9.01(6) or 9.01(11) for the benefit of the Holders of such series, in Article Eight, or in Sections 10.05 and 10.06, if before the time for such compliance the Holders
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of at least a majority in principal amount of the Outstanding Securities of such affected series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 10.08. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series or any coupon appertaining thereto Additional Amounts as may be specified as contemplated by Section 3.01. Whenever in this Indenture there is mentioned, in any context except in the case of Section 5.02, the payment of principal (and premium, if any), the Redemption Price, if any, interest or any other amount payable under or with respect to 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 pursuant to Section 3.01 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms.
Except as otherwise specified as contemplated by Section 3.01, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents if such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons subject to withholding for or on account of any tax, assessment or other governmental charge described in the Securities of or within the series unless such withholding arises solely because of a connection between the Trustee and the Relevant Jurisdiction other than a connection arising solely as a result of the Trustee performing its obligations under this Indenture, in which case the remaining sentences of this paragraph shall not apply. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series or related coupons and the Company will pay to the Trustee or such Paying Agent the Additional Amounts, if any, required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned certificate, then the Trustee or such Paying Agent shall be entitled (i) to assume that no such withholding or deduction is required with respect to any payment of principal or interest with respect to any Securities of a series or related coupons until it shall have received a certificate advising otherwise and (ii) to make all payments of principal and interest with respect to the Securities of a series or related coupons without withholding or deductions until otherwise advised. The Company covenants to indemnify the Trustee and any Paying Agent and their respective officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense (including legal fees and expenses) reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted
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by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 10.08 or in reliance on the Company not furnishing such an Officer’s Certificate.
SECTION 10.09. Negative Pledge
So long as any of the Securities of this series remains outstanding the Company will not create any mortgage, charge, pledge, lien, encumbrance or other security interest (“Lien”) (other than a Permitted Lien) upon its assets to secure any Quoted Indebtedness or any Qualifying Guarantee of such Quoted Indebtedness, unless in any such case the Company grants, for the benefit of holders of the Securities, a security interest in such assets that is equal and ratable to the security interests in favor of the holders of the Quoted Indebtedness (or, in the case of a Lien securing Quoted Indebtedness that is expressly subordinated or junior to the Securities, secured by a Lien that is senior in priority to such Lien).
Notwithstanding anything in this Indenture or the Securities to the contrary, this Indenture and the Securities shall not be deemed to prohibit or restrict, and no Event of Default under this Indenture and the Securities shall result from the existence of any default, violation, early amortization or other adverse event or circumstance under, any Non-recourse Securitization.
SECTION 10.10. Repurchase at the Option of Holders
Except as otherwise specified as contemplated by Section 3.01, if a Change of Control Event occurs, unless the Company has previously or concurrently sent a redemption notice with respect to all the then Outstanding Securities of the applicable series pursuant to Section 11.04, the Holder of any Security of such series shall have the right to require the Company to purchase all or a portion of that Holder’s Securities (equal to $1,000 or an integral multiple thereof) pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of such Securities on the relevant Regular Record Date to receive Interest due on the relevant Interest Payment Date.
In connection with any Change of Control Event (but not later than 30 calendar days following any Change of Control Event), the Company shall send notice of such Change of Control Offer, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 10.10 and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 calendar days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”);
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(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date an electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $1,000 or an integral multiple thereof;
(7) if such notice is sent prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant set forth hereunder, that a Holder must follow to tender its Securities.
The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer and/or (ii) a notice of redemption has been given pursuant to Section 1104, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof.
Subject to Article Nine, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the Securities then Outstanding under the Indenture.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article Eleven.
SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities. In case of any redemption at the election of the Company of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company shall, at least 45 days prior to the Redemption Date fixed by the Company (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
SECTION 11.0.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date, from the Outstanding Securities of such series not previously called for redemption, and such redemption shall be effected by lot in compliance with the requirements of the principal national securities exchange and subject to applicable procedures or regulations of the Depositary; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security and provided further that so long as the Securities are represented by one or more Global Securities, such selection shall be made by the Depositary in accordance with its customary procedures. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed (unless such Securities are represented by one or more Global Securities) shall be selected and notice of redemption will be sent in accordance with the applicable procedures of the Depositary to each Holder at least 30 but not more than 45 days prior to the Redemption Date, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
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The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
Notice of redemption shall be sent in accordance with the applicable procedures of the Depositary not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register, with a copy to the Trustee and any Paying Agent, except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a Legal Defeasance of the Securities of the relevant series pursuant to Article Thirteen or a satisfaction and discharge of the Indenture pursuant to Article Four.
All notices of redemption shall identify the Securities to be redeemed, including CUSIP number, if any, and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) that interest, if any, accrued to the date fixed for redemption will be paid as specified in said notice,
(6) the place or places where each such Security is to be surrendered for payment of the Redemption Price and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request given two Business Days prior to sending
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out the notice of redemption, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
The Company may provide in such notice that the payment of the Redemption Price and the performance of its obligations with respect to such redemption of an applicable series of Securities may be performed by another Person and may, at the Company’s discretion, be subject to one or more conditions precedent.
SECTION 11.05. Deposit of Redemption Price.
Prior to any Redemption Date and at the latest at 10:00 am New York City time on the Redemption Date, the Company shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together, if applicable, with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
SECTION 11.08. Securities No Longer Outstanding After Notice to Trustee and Deposit of Money.
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If the Company, having given notice to the Trustee as provided in Section 11.02, shall have deposited with the Trustee or a Paying Agent, for the benefit of the Holders of any Securities of any series or portions thereof called for redemption in whole or in part cash or other form of payment if permitted by the terms of such Securities (which amount shall be immediately due and payable to the Holders of such Securities or portions thereof), in the amount necessary so to redeem all such Securities or portions thereof on the Redemption Date and provision satisfactory to the Trustee shall have been made for the giving of notice of such redemption, such Securities or portions thereof, shall thereupon, for all purposes of this Indenture, be deemed to be no longer Outstanding, and the Holders thereof shall be entitled to no rights thereunder or hereunder, except the right to receive payment of the Redemption Price, together with interest accrued to the Redemption Date, on or after the Redemption Date of such Securities or portions thereof.
SECTION 11.09. Other Purchases.
The Company may acquire Securities by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture or the Securities. Securities so acquired may be held, resold or, at the Company’s option, surrendered to the Trustee for cancellation.
ARTICLE TWELVE
SINKING FUNDS
SECTION 12.01. Applicability of Article.
The provisions of this Article Twelve shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
SECTION 12.02. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such
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Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 12.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 12.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 nor more than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE THIRTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 13.01. Company’s Option to Effect Legal Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company may elect, at its option at any time, to have Section 13.02 or Section 13.03 applied to any such series of Securities or any Securities of such series, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 13.02 or 13.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article Thirteen. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
SECTION 13.02. Defeasance and Discharge.
Upon the Company’s exercise under this Article Thirteen of the option applicable to this Section 13.02 and Section 13.03 with respect to any series of Securities, the Company shall, subject to the satisfaction of the conditions set forth in Section 13.04 hereof, be deemed to have been discharged from its obligations with respect to that series of Securities on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of that series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 13.05 hereof and the other Sections of this Indenture referred to in Clauses (a) and (b) below, to have satisfied all its other
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obligations under the Securities of that series and this Indenture (and the Trustee, on demand of and at the expense of the Company, shall execute proper instruments prepared by the Company acknowledging the same) and to have cured all then existing Events of Default with respect to that series of Securities, except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Securities of that series to receive payments in respect of the principal of, premium, if any, and interest on the Securities of that series when such payments are due solely out of the trust created pursuant to this Indenture for those Securities;
(b) the Company’s obligations with respect to any series of Securities concerning issuing temporary Securities, registration of such Securities, mutilated, destroyed, lost or stolen Securities and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, Security Registrar and Paying Agent and the Company’s obligations in connection therewith; and
(d) this Section 13.02.
Subject to compliance with this Article Thirteen, the Company may exercise its option under this Section 13.02 notwithstanding the prior exercise of their option under Section 13.03 hereof.
SECTION 13.03. Covenant Defeasance.
Upon the Company’s exercise under this Article Thirteen of the option applicable to this Section 13.03 with respect to any series of Securities, the Company shall, subject to the satisfaction of the conditions set forth in Section 13.04 hereof, be released from its obligations under the covenants with respect to that series of Securities (each, a “Defeased Covenant”, and collectively, the “Defeased Covenants”) contained in Article Eight, Sections 10.04 through 10.06 inclusive, Section 10.09 and any covenants provided pursuant to Sections 3.01(23), 9.01(6) and 9.01(12) hereof with respect to the outstanding Securities on and after the date the conditions set forth in Section 13.04 hereof are satisfied (“Covenant Defeasance”), and the Securities of that series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) of Securities of that series in connection with such Defeased Covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of that series, the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any Defeased Covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Defeased Covenant or by reason of any reference in any such Defeased Covenant to any other provision herein or in any other document, and such omission to comply shall not constitute a default or an Event of Default under Section 5.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. In addition, upon the Company’s exercise under this Article Thirteen of the option applicable to this
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Section 13.03 hereof with respect to any series of Securities, subject to the satisfaction of the conditions set forth in Section 13.04 hereof, the events set forth in Section 5.01 (with respect to the foregoing sections of Article Ten only) hereof shall not constitute an Event of Default.
SECTION 13.04. Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to a series of Securities:
(1) the Company must irrevocably deposit with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article Thirteen applicable to it) as trust funds in trust, for the benefit of the Holders of that series of Securities, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay the principal amount of, premium, if any, and interest due on that series of Securities on the Stated Maturity or on the Redemption Date, as the case may be, of such principal amount, premium, if any, or interest on such Securities, and the Company must specify whether such Securities are being defeased to Maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(A) the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(B) since the issuance of the Securities of that series, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of that series of Securities shall not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel in form reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of that series of Securities shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and shall be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no default with respect to that series of Securities (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit
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relating to such other indebtedness, and in each case, the granting of liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument governing indebtedness (other than this Indenture) to which, the Company is a party or by which the Company is bound (other than that resulting from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other indebtedness, and, in each case, the granting of liens in connection therewith);
(6) the Company shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(7) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with;
(8) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act); and
(9) such Legal Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
SECTION 13.05. Deposited Money and Government Securities to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and Government Securities (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 13.05 and Section 13.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 13.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Securities deposited pursuant to Section 13.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
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Anything in this Article Thirteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or Government Securities held by it as provided in Section 13.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 13.04(1) above), are in excess of the amount thereof which would then be required to be deposited to effect the Legal Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 13.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Securities in accordance with this Article Thirteen with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company has been discharged or released pursuant to Section 13.02 or 13.03 shall be revived and reinstated as though no deposit had occurred pursuant to this Article Thirteen with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all such money or Government Securities held in trust pursuant to Section 13.05 with respect to such Securities in accordance with this Article Thirteen; provided, however, that if the Company makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE FOURTEEN
MISCELLANEOUS
SECTION 14.01 Counterparts.
This Indenture, any Supplement Indenture and any Security may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement or document related to this Indenture shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 14.02. Withholding.
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In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time to which a foreign financial institution, issuer, paying agent, holder or other institution is or has agreed to be subject related to this Indenture (“Applicable Tax Law”), the Company agrees (i) to provide to the Trustee and the Paying Agent sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) in the Company’s possession so that the Trustee and the Paying Agent can determine whether it has tax related obligations under Applicable Tax Law, and (ii) that the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Tax Law. The terms of this Section 15.02 shall survive the termination of this Indenture.
SECTION 14.03. No Personal Liability of Directors, Officers, Employees and Stockholders.
None of the Company’s past, present or future directors, officers, employees, or shareholders or any of their direct or indirect equity holders shall have any liability for any of the Company’s obligations under any series of Securities or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder or beneficial owner of any Security, by accepting such Security, is deemed to waive and release all such liability. The waiver and release are part of the consideration for issuance of such Securities.
SECTION 14.04. Office of Foreign Assets Control Sanctions Representations.
(a) The Company represents as of the date hereof that neither the Company nor any of its subsidiaries, nor, to its knowledge, any of its affiliates, directors, senior executive officers or officers with ability to direct/control operations are the target or subject of any sanctions enforced by the US Government (including, without limitation, the Office of Foreign Assets Control of the US Department of the Treasury or the US Department of State), the United Nations Security Council, the European Union, or His Majesty’s Treasury (collectively “Sanctions”).
(b) The Company covenants that neither the Company nor any of its subsidiaries will directly or indirectly use the proceeds of any offerings of Securities pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, or (ii) in any other manner that will result in a violation of Sanctions by any person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
STELLANTIS N.V.
as Company
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK MELLON,
as Trustee
By: ______________________________
Name:
Title:
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Schedule 803
Indenture, dated as of ____________, among Stellantis Finance US Inc., as Company, Stellantis N.V., as guarantor, and The Bank of New York Mellon, as trustee.
Exhibit 4.3
STELLANTIS FINANCE US INC.,
as Company,
STELLANTIS N.V.,
as Guarantor,
and
THE BANK OF NEW YORK MELLON,
as Trustee
Indenture
Dated as of
__________________.
Certain Sections of this Indenture relating to Sections 310 through 318, inclusive, of the Trust Indenture Act of 1939:
| Trust Indenture Act Section | Indenture Section | ||||||||||
| § 310(a)(1) | .................................................................................. | 6.09 | |||||||||
| (a)(2) | .................................................................................. | 6.09 | |||||||||
| (a)(3) | .................................................................................. | Not Applicable | |||||||||
| (a)(4) | .................................................................................. | Not Applicable | |||||||||
| (b) | .................................................................................. | 6.08 | |||||||||
| 6.10 | |||||||||||
| § 311(a) | .................................................................................. | 6.13 | |||||||||
| (b) | .................................................................................. | 6.13 | |||||||||
| § 312(a) | .................................................................................. | 7.01 | |||||||||
| 7.02 | |||||||||||
| (b) | .................................................................................. | 7.02 | |||||||||
| (c) | .................................................................................. | 7.02 | |||||||||
| § 313(a) | .................................................................................. | 7.03 | |||||||||
| (b) | .................................................................................. | 7.03 | |||||||||
| (c) | .................................................................................. | 7.03 | |||||||||
| (d) | .................................................................................. | 7.03 | |||||||||
| § 314(a) | .................................................................................. | 7.04 | |||||||||
| (a)(4) | .................................................................................. | 1.01 | |||||||||
| 10.04 | |||||||||||
| (b) | .................................................................................. | Not Applicable | |||||||||
| (c)(1) | .................................................................................. | 1.02 | |||||||||
| (c)(2) | .................................................................................. | 1.02 | |||||||||
| (c)(3) | .................................................................................. | Not Applicable | |||||||||
| (d) | .................................................................................. | Not Applicable | |||||||||
| (e) | .................................................................................. | 1.02 | |||||||||
| § 315(a) | .................................................................................. | 6.01 | |||||||||
| (b) | .................................................................................. | 6.02 | |||||||||
| (c) | .................................................................................. | 6.01 | |||||||||
| (d) | .................................................................................. | 6.01 | |||||||||
| (e) | .................................................................................. | 5.14 | |||||||||
| § 316(a) | .................................................................................. | 1.01 | |||||||||
| (a)(1)(A) | .................................................................................. | 5.02 | |||||||||
| 5.12 | |||||||||||
| (a)(1)(B) | .................................................................................. | 5.13 | |||||||||
| (a)(2) | .................................................................................. | Not Applicable | |||||||||
| (b) | .................................................................................. | 5.08 | |||||||||
| (c) | .................................................................................. | 1.04 | |||||||||
| § 317(a)(1) | .................................................................................. | 5.03 | |||||||||
| (a)(2) | .................................................................................. | 5.04 | |||||||||
| (b) | .................................................................................. | 10.03 | |||||||||
| § 318(a) | .................................................................................. | 1.07 | |||||||||
___________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
TABLE OF CONTENTS
Page
| RECITALS | .......................................................................................................................................... | 1 | ||||||
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. | Definitions.................................................................................................................................... | 1 | |||||||||
| Act ................................................................................................................................................................. | 2 | ||||
| Additional Amounts ...................................................................................................................................... | 2 | ||||
| Affiliate ......................................................................................................................................................... | 2 | ||||
| Applicable Tax Law ...................................................................................................................................... | 2 | ||||
| Authenticating Agent .................................................................................................................................... | 2 | ||||
| Authorized Agent .......................................................................................................................................... | 2 | ||||
| Authorized Person ......................................................................................................................................... | 2 | ||||
| Board of Directors ......................................................................................................................................... | 2 | ||||
| Board Resolution .......................................................................................................................................... | 2 | ||||
| Business Day ................................................................................................................................................. | 2 | ||||
| Change of Control ......................................................................................................................................... | 2 | ||||
| Change of Control Event .............................................................................................................................. | 3 | ||||
| Change of Control Offer ............................................................................................................................... | 3 | ||||
| Change of Control Payment .......................................................................................................................... | 3 | ||||
| Change of Control Payment Date ................................................................................................................. | 3 | ||||
| Code .............................................................................................................................................................. | 3 | ||||
| Commission .................................................................................................................................................. | 3 | ||||
| Common Shares ............................................................................................................................................ | 3 | ||||
| Company ....................................................................................................................................................... | 3 | ||||
| Company Request ......................................................................................................................................... | 3 | ||||
| Company Order ............................................................................................................................................. | 3 | ||||
| Corporate Trust Office .................................................................................................................................. | 3 | ||||
| Covenant Defeasance..................................................................................................................................... | 3 | ||||
| Defaulted Interest .......................................................................................................................................... | 3 | ||||
| Defeased Covenant........................................................................................................................................ | 4 | ||||
| Depositary ..................................................................................................................................................... | 4 | ||||
| Electronic Means .......................................................................................................................................... | 4 | ||||
| Etablissements Peugeot Frères .................................................................................................................... | 4 | ||||
| Event of Default ............................................................................................................................................ | 4 | ||||
| Exchange Act ................................................................................................................................................ | 4 | ||||
| Expiration Date ............................................................................................................................................. | 4 | ||||
| Financial Services Subsidiary ....................................................................................................................... | 4 | ||||
| Global Security ............................................................................................................................................. | 5 | ||||
| Government Securities .................................................................................................................................. | 5 | ||||
| Guarantee ...................................................................................................................................................... | 5 | ||||
| Guarantor ...................................................................................................................................................... | 5 | ||||
| Holder ........................................................................................................................................................... | 5 | ||||
| Indebtedness .................................................................................................................................................. | 5 | ||||
| Indenture ....................................................................................................................................................... | 5 | ||||
| Instructions .................................................................................................................................................... | 6 | ||||
| Interest ........................................................................................................................................................... | 6 | ||||
| Investment Grade .......................................................................................................................................... | 6 | ||||
| Interest Payment Date.................................................................................................................................... | 6 | ||||
| Investment Company Act ............................................................................................................................. | 6 | ||||
| Issue Date ...................................................................................................................................................... | 6 | ||||
| Legal Defeasance ......................................................................................................................................... | 6 | ||||
| Lien ............................................................................................................................................................... | 6 | ||||
| Loan Financing ............................................................................................................................................. | 6 | ||||
| Maturity.......................................................................................................................................................... | 6 | ||||
| Material Subsidiary........................................................................................................................................ | 6 | ||||
| Member of the Group .................................................................................................................................... | 7 | ||||
| Moody’s ........................................................................................................................................................ | 7 | ||||
| Non-recourse Securitization .......................................................................................................................... | 7 | ||||
| Non-recourse Securitization Debt ................................................................................................................. | 8 | ||||
| OECD ............................................................................................................................................................ | 8 | ||||
| OECD Country ............................................................................................................................................. | 8 | ||||
| Officer ........................................................................................................................................................... | 8 | ||||
| Officer’s Certificate ..................................................................................................................................... | 8 | ||||
| Opinion of Counsel ....................................................................................................................................... | 8 | ||||
| Original Issue Discount Security .................................................................................................................. | 8 | ||||
| Outstanding ................................................................................................................................................... | 8 | ||||
| Par Call Date ................................................................................................................................................. | 9 | ||||
| Payor ............................................................................................................................................................. | 9 | ||||
| Paying Agent ................................................................................................................................................. | 9 | ||||
| Permitted Liens ............................................................................................................................................. | 10 | ||||
| Person ............................................................................................................................................................ | 11 | ||||
| Peugeot Invest ............................................................................................................................................... | 11 | ||||
| Place of Payment ........................................................................................................................................... | 11 | ||||
| Predecessor Security ..................................................................................................................................... | 11 | ||||
| Qualifying Guarantee ................................................................................................................................... | 11 | ||||
| Quoted Indebtedness ..................................................................................................................................... | 11 | ||||
| Rating Agency ............................................................................................................................................. | 11 | ||||
| Rating Date ................................................................................................................................................... | 12 | ||||
| Rating Decline ............................................................................................................................................. | 12 | ||||
| Redemption Date .......................................................................................................................................... | 12 | ||||
| Redemption Price .......................................................................................................................................... | 13 | ||||
| Regular Record Date ..................................................................................................................................... | 13 | ||||
| Related Party ................................................................................................................................................. | 13 | ||||
| Relevant Jurisdiction ..................................................................................................................................... | 13 | ||||
| Responsible Officer ...................................................................................................................................... | 13 | ||||
| Securities ....................................................................................................................................................... | 13 | ||||
| Securities Act ................................................................................................................................................ | 13 | ||||
| Security Register ........................................................................................................................................... | 13 | ||||
| Security Registrar .......................................................................................................................................... | 13 | ||||
| Securitizable Asset ........................................................................................................................................ | 13 | ||||
| Securitization Entity ..................................................................................................................................... | 13 | ||||
| Special Record Date ..................................................................................................................................... | 13 | ||||
| S&P ............................................................................................................................................................... | 13 | ||||
| Standard Securitization Undertaking ............................................................................................................ | 14 | ||||
| Stated Maturity .............................................................................................................................................. | 14 | ||||
| Subsidiary ..................................................................................................................................................... | 14 | ||||
| Substitute ...................................................................................................................................................... | 14 | ||||
| Substitution by Guarantor Documents ......................................................................................................... | 14 | ||||
| Substitution by Treasury Subsidiary Documents .......................................................................................... | 14 | ||||
| Taxes ............................................................................................................................................................. | 14 | ||||
| Treasury Rate ................................................................................................................................................ | 14 | ||||
| Treasury Subsidiary....................................................................................................................................... | 14 | ||||
| Trust Indenture Act........................................................................................................................................ | 14 | ||||
| Trustee ........................................................................................................................................................... | 14 | ||||
| Voting Stock.................................................................................................................................................. | 15 | ||||
SECTION 1.02. | Compliance Certificates and Opinions ....................................................................... | 15 | |||||||||
| SECTION 1.03. | Form of Documents Delivered to Trustee .................................................................. | 15 | |||||||||
| SECTION 1.04. | Acts of Holders; Record Dates ................................................................................... | 16 | |||||||||
| SECTION 1.05. | Notices, Etc., to Trustee, the Company and the Guarantor ........................................ | 18 | |||||||||
| SECTION 1.06. | Notice to Holders; Waiver ......................................................................................... | 19 | |||||||||
| SECTION 1.07. | Conflict with Trust Indenture Act .............................................................................. | 20 | |||||||||
| SECTION 1.08. | Effect of Headings and Table of Contents ................................................................. | 20 | |||||||||
| SECTION 1.09. | Successors and Assigns .............................................................................................. | 20 | |||||||||
| SECTION 1.10. | Separability Clause ..................................................................................................... | 20 | |||||||||
| SECTION 1.11. | Benefits of Indenture .................................................................................................. | 20 | |||||||||
| SECTION 1.12. | Governing Law; Waiver of Jury Trial ........................................................................ | 20 | |||||||||
| SECTION 1.13. | Legal Holidays ........................................................................................................... | 20 | |||||||||
| SECTION 1.14. | Authorized Agent; Submission to Jurisdiction; Waiver of Immunity ....................... | 21 | |||||||||
ARTICLE TWO
SECURITY FORMS
| SECTION 2.01. | Forms Generally ......................................................................................................... | 21 | |||||||||
| SECTION 2.02. | Form of Face of Security ............................................................................................ | 22 | |||||||||
| SECTION 2.03. | Form of Reverse of Security ...................................................................................... | 24 | |||||||||
| SECTION 2.04. | Securities in Global Form .......................................................................................... | 32 | |||||||||
| SECTION 2.05. | Form of Trustee’s Certificate of Authentication ........................................................ | 32 | |||||||||
| SECTION 2.06. | Form of Guarantee ..................................................................................................... | 33 | |||||||||
ARTICLE THREE
THE SECURITIES
| SECTION 3.01. | Amount Unlimited; Issuable in Series ....................................................................... | 35 | |||||||||
| SECTION 3.02. | Denominations ........................................................................................................... | 38 | |||||||||
| SECTION 3.03. | Execution, Authentication, Delivery and Dating ....................................................... | 38 | |||||||||
| SECTION 3.04. | Temporary Securities ................................................................................................ | 40 | |||||||||
| SECTION 3.05. | Registration, Registration of Transfer and Exchange ................................................ | 41 | |||||||||
| SECTION 3.06. | Mutilated, Destroyed, Lost and Stolen Securities ...................................................... | 43 | |||||||||
| SECTION 3.07. | Payment of Interest; Interest Rights Preserved .......................................................... | 44 | |||||||||
| SECTION 3.08. | Persons Deemed Owners ............................................................................................ | 45 | |||||||||
| SECTION 3.09. | Cancellation ................................................................................................................ | 45 | |||||||||
| SECTION 3.10. | Computation of Interest .............................................................................................. | 45 | |||||||||
| SECTION 3.11. | CUSIP Numbers ......................................................................................................... | 46 | |||||||||
ARTICLE FOUR
SATISFACTION AND DISCHARGE
| SECTION 4.01. | Satisfaction and Discharge of Indenture. ................................................................... | 46 | |||||||||
| SECTION 4.02. | Application of Trust Money........................................................................................ | 47 | |||||||||
ARTICLE FIVE
REMEDIES
| SECTION 5.01. | Events of Default ........................................................................................................ | 47 | |||||||||
| SECTION 5.02. | Acceleration of Maturity; Rescission and Annulment; Waiver of Existing Default ........................................................................................................................ | 49 | |||||||||
| SECTION 5.03. | Collection of Indebtedness and Suits for Enforcement by Trustee ............................ | 50 | |||||||||
| SECTION 5.04. | Trustee May File Proofs of Claim .............................................................................. | 50 | |||||||||
| SECTION 5.05. | Trustee May Enforce Claims Without Possession of Securities ................................ | 51 | |||||||||
| SECTION 5.06. | Application of Money Collected ................................................................................ | 51 | |||||||||
| SECTION 5.07. | Limitation on Suits ..................................................................................................... | 52 | |||||||||
| SECTION 5.08. | Unconditional Right of Holders to Receive Principal, Premium and Interest ........... | 52 | |||||||||
| SECTION 5.09. | Restoration of Rights and Remedies........................................................................... | 53 | |||||||||
| SECTION 5.10. | Rights and Remedies Cumulative............................................................................... | 53 | |||||||||
| SECTION 5.11. | Delay or Omission Not Waiver .................................................................................. | 53 | |||||||||
| SECTION 5.12. | Control by Holders ..................................................................................................... | 53 | |||||||||
| SECTION 5.13. | Waiver of Past Defaults.............................................................................................. | 54 | |||||||||
| SECTION 5.14. | Undertaking for Costs ................................................................................................ | 54 | |||||||||
| SECTION 5.15. | Waiver of Usury, Stay or Extension Laws ................................................................. | 54 | |||||||||
ARTICLE SIX
THE TRUSTEE
| SECTION 6.01. | Certain Duties and Responsibilities............................................................................ | 55 | |||||||||
| SECTION 6.02 | Notice of Defaults....................................................................................................... | 56 | |||||||||
| SECTION 6.03 | Certain Rights of Trustee ........................................................................................... | 56 | |||||||||
| SECTION 6.04. | Not Responsible for Recitals or Issuance of Securities.............................................. | 58 | |||||||||
| SECTION 6.05. | May Hold Securities ................................................................................................... | 58 | |||||||||
| SECTION 6.06. | Money Held in Trust .................................................................................................. | 58 | |||||||||
| SECTION 6.07. | Compensation and Reimbursement ............................................................................ | 58 | |||||||||
| SECTION 6.08. | Disqualification; Conflicting Interests........................................................................ | 59 | |||||||||
| SECTION 6.09. | Corporate Trustee Required; Eligibility...................................................................... | 59 | |||||||||
| SECTION 6.10. | Resignation and Removal; Appointment of Successor............................................... | 59 | |||||||||
| SECTION 6.11 | Acceptance of Appointment by Successor.................................................................. | 61 | |||||||||
| SECTION 6.12. | Merger, Conversion, Consolidation or Succession to Business.................................. | 62 | |||||||||
| SECTION 6.13. | Preferential Collection of Claims Against Company or the Guarantor ......................................................................................................... | 62 | |||||||||
| SECTION 6.14. | Appointment of Authenticating Agent ....................................................................... | 62 | |||||||||
ARTICLE SEVEN
HOLDER’S LISTS AND REPORTS BY TRUSTEE AND COMPANY
| SECTION 7.01. | Company and Guarantor to Furnish Trustee Names and Addresses of Holders ................................................................................................. | 65 | |||||||||
| SECTION 7.02. | Preservation of Information; Communications to Holders ........................................ | 65 | |||||||||
| SECTION 7.03. | Reports by Trustee ..................................................................................................... | 66 | |||||||||
| SECTION 7.04. | Reports by the Guarantor............................................................................................ | 66 | |||||||||
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS; SUBSTITUTION
| SECTION 8.01. | Company and Guarantor May Consolidate, Etc., Only on Certain Terms ................ | 66 | |||||||||
| SECTION 8.02. | Successor Substituted ................................................................................................. | 67 | |||||||||
| SECTION 8.03. | Substitution by Guarantor .................................................................................... | 67 | |||||||||
| SECTION 8.04. | Substitution by Treasury Subsidiary .......................................................................... | 69 | |||||||||
| SECTION 8.05. | Holders’ Consent Regarding Substitution................................................................... | 70 | |||||||||
ARTICLE NINE
SUPPLEMENTAL INDENTURES
| SECTION 9.01. | Supplemental Indentures Without Consent of Holders .............................................. | 71 | |||||||||
| SECTION 9.02. | Supplemental Indentures With Consent of Holders ................................................... | 72 | |||||||||
| SECTION 9.03. | Execution of Supplemental Indentures ...................................................................... | 73 | |||||||||
| SECTION 9.04. | Effect of Supplemental Indentures ............................................................................. | 74 | |||||||||
| SECTION 9.05. | Conformity with Trust Indenture Act ........................................................................ | 74 | |||||||||
| SECTION 9.06. | Reference in Securities to Supplemental Indentures .................................................. | 74 | |||||||||
ARTICLE TEN
COVENANTS
| SECTION 10.01. | Payment of Principal, Premium and Interest .............................................................. | 74 | |||||||||
| SECTION 10.02. | Maintenance of Office or Agency by Company ........................................................ | 74 | |||||||||
| SECTION 10.03. | Money for Securities Payments to Be Held in Trust .................................................. | 75 | |||||||||
| SECTION 10.04. | Statement by Officers as to Default ........................................................................... | 76 | |||||||||
| SECTION 10.05. | Existence .................................................................................................................... | 77 | |||||||||
| SECTION 10.06. | Payment of Taxes and Other Claims .......................................................................... | 77 | |||||||||
| SECTION 10.07. | Waiver of Certain Covenants ..................................................................................... | 77 | |||||||||
| SECTION 10.08. | Additional Amounts ................................................................................................... | 77 | |||||||||
| SECTION 10.09. | Negative Pledge ......................................................................................................... | 78 | |||||||||
| SECTION 10.10. | Repurchase at the Option of Holders ......................................................................... | 79 | |||||||||
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
| SECTION 11.01. | Applicability of Article .............................................................................................. | 80 | |||||||||
| SECTION 11.02. | Election to Redeem; Notice to Trustee ...................................................................... | 80 | |||||||||
| SECTION 11.03. | Selection by Trustee of Securities to Be Redeemed .................................................. | 81 | |||||||||
| SECTION 11.04. | Notice of Redemption ................................................................................................ | 81 | |||||||||
| SECTION 11.05. | Deposit of Redemption Price ..................................................................................... | 82 | |||||||||
| SECTION 11.06. | Securities Payable on Redemption Date .................................................................... | 83 | |||||||||
| SECTION 11.07. | Securities Redeemed in Part ....................................................................................... | 83 | |||||||||
| SECTION 11.08. | Securities No Longer Outstanding After Notice to Trustee and Deposit of Money ....................................................................................................... | 83 | |||||||||
| SECTION 11.09. | Other Purchases .......................................................................................................... | 84 | |||||||||
ARTICLE TWELVE
GUARANTEES
| SECTION 12.01. | Guarantee .................................................................................................................. | 84 | |||||||||
| SECTION 12.02. | Execution and Delivery of Guarantee ........................................................................ | 85 | |||||||||
ARTICLE THIRTEEN
SINKING FUNDS
| SECTION 13.01. | Applicability of Article .............................................................................................. | 86 | |||||||||
| SECTION 13.02. | Satisfaction of Sinking Fund Payments with Securities ............................................ | 86 | |||||||||
| SECTION 13.03. | Redemption of Securities for Sinking Fund ............................................................... | 86 | |||||||||
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
| SECTION 14.01. | Company’s and Guarantor’s Option to Effect Legal Defeasance or Covenant Defeasance ............................................................... | 87 | |||||||||
| SECTION 14.02. | Defeasance and Discharge ......................................................................................... | 87 | |||||||||
| SECTION 14.03. | Covenant Defeasance ................................................................................................. | 88 | |||||||||
| SECTION 14.04. | Conditions to Legal Defeasance or Covenant Defeasance | 88 | |||||||||
| SECTION 14.05. | Deposited Money and Government Securities to Be Held in Trust; Miscellaneous Provisions ........................................................................................... | 90 | |||||||||
| SECTION 14.06. | Reinstatement | 90 | |||||||||
ARTICLE FIFTEEN
MISCELLANEOUS
| SECTION 14.01. | Counterparts ............................................................................................................... | 91 | |||||||||
| SECTION 14.02. | Withholding ............................................................................................................... | 91 | |||||||||
| SECTION 14.03. | No Personal Liability of Directors, Officers, Employees and Stockholders ............................................................................................................... | 92 | |||||||||
| SECTION 14.04. | Office of Foreign Assets Control Sanctions Representations .................................... | 92 | |||||||||
INDENTURE, dated as of _____________ between Stellantis Finance US Inc., a corporation duly organized and existing under the laws of the State of Delaware (herein called the “Company”), having its principal address at 1000 Chrysler Drive, Auburn Hills, MI 48326, Stellantis N.V., a public company with limited liability (naamloze vennootschap) incorporated under Dutch law (herein called the “Guarantor”), having its principal address at Taurusavenue 1, 2132 LS Hoofddorp, The Netherlands, and The Bank of New York Mellon, as Trustee (herein called the “Trustee”), having its Corporate Trust Office at 240 Greenwich Street, Floor 7E, New York, NY 10286.
RECITALS
The Company and the Guarantor have duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of the Company’s unsecured debentures, notes or other evidences of indebtedness guaranteed by the Guarantor (herein called the “Securities”) to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the Company and the Guarantor in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities or of any series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article One have the meanings assigned to them in this Article One and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with the International Financial Reporting Standards;
(4) “or” is not exclusive;
(5) “including” or “include” means including or include without limitation;
(6) unless the context otherwise requires, any reference to an “Article” or a “Section” refers to an Article or a Section, as the case may be, of this Indenture; and
(7) 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.
“Act”, when used with respect to any Holder, has the meaning specified in Section 1.04.
“Additional Amounts” has the meaning specified in Section 2.03.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any Person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise.
“Applicable Tax Law” has the meaning specified in Section 15.02.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.14 to act on behalf of the Trustee to authenticate Securities of one or more series.
“Authorized Agent” has the meaning specified in Section 1.14.
“Authorized Person” has the meaning specified in Section 1.05.
“Board of Directors” means the board of directors of the Company or the Guarantor, as applicable, or any duly authorized committee of such board.
“Board Resolution” when used with reference to the Company or the Guarantor means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as applicable, to have been duly adopted by its Board of Directors (or a duly authorized committee of board members acting under delegated authority or a duly authorized board member thereof acting under delegated authority) to be in full force and effect on the date of such certification, and delivered to the Trustee.
“Business Day” means each day which is not a Saturday, a Sunday or a day on which commercial banking institutions are authorized or required by law or executive order to close or be closed in The City of New York, or, with respect to a Place of Payment, such Place of Payment.
“Change of Control” means the occurrence of any of the following after the Issue Date:
1. the consummation of any transaction (including, without limitation, any merger or consolidation), the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act, or any successor provision), other than one or more Related Parties, becomes
the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of Stellantis N.V. measured by voting power rather than number of shares; or
2. the stockholders of the Company or the Guarantor approve any plan of liquidation or dissolution of the Company or the Guarantor, as the case may be, other than in connection with a merger, consolidation or other form of combination while the Company or Guarantor is solvent, with another company where such company, in the case of the Company, assumes all obligations of the Company under the Securities and, in the case of the Guarantor, assumes all obligations of the Guarantor under the Guarantee and where such merger, consolidation or other combination does not have the effect of or result in an event described in paragraph (1) above.
“Change of Control Event” means the occurrence of a Change of Control and a Rating Decline.
“Change of Control Offer” has the meaning specified in Section 10.10.
“Change of Control Payment” has the meaning specified in Section 10.10.
“Change of Control Payment Date” has the meaning specified in Section 10.10.
“Code” has the meaning specified in Section 2.03.
“Commission” means the Securities and Exchange Commission, from time to time constituted, created under the Exchange Act, or, if at any time after the execution of this instrument such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Common Shares” means the common shares of the Guarantor, par value €0.01 per share.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor Person.
“Company Request” or “Company Order” means a written request or order signed in the name of the Company by at least one Officer of the Company and delivered to the Trustee.
“Corporate Trust Office” means the principal office of the Trustee in New York, New York at which at any particular time its corporate trust business shall be administered, which office at the date hereof is located at 240 Greenwich Street, Floor 7E, New York, NY 10286, Attn: Corporate Trust Administration, or any other address that the Trustee may designate with respect to itself from time to time by notice to the Company and the Holders, 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 Company and the Holders).
“Covenant Defeasance” has the meaning specified in Section 14.03.
“Defaulted Interest” has the meaning specified in Section 3.07.
“Defeased Covenant” has the meaning specified in Section 14.03.
“Depositary” means, with respect to the Securities issuable or issued in whole or in part in global form, any Person that is designated to act as Depositary for such Securities as contemplated by Section 3.01.
“Electronic Means” shall mean the following communications methods: e-mail, secure electronic transmission containing applicable authorization codes, passwords and/or authentication keys issued by the Trustee, or another method or system specified by the Trustee as available for use in connection with its services hereunder.
“Etablissements Peugeot Frères” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 875 750 317.
“Event of Default” has the meaning specified in Section 5.01.
“Exchange Act” means the U.S. Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Expiration Date” has the meaning specified in Section 1.04.
“Financial Services Subsidiary” means a Subsidiary of the Guarantor:
A. which carries on no material business other than the offer and sale of financial services products to customers, dealers or suppliers of Members of the Group (and other related support activities incidental to the offer and sale of such financial services products including, without limitation, input financing and rental business activities) in any of the following areas:
(1) retail financing for the purchase, contract hire or lease of new or old equipment manufactured by a Member of the Group or any other manufacturer whose products are from time to time sold through the dealer network of a Member of the Group;
(2) other retail and wholesale financing programs reasonably related thereto, including, without limitation, financing to the dealer network of any Member of the Group;
(3) insurance and credit card products and services reasonably related thereto, together with the underwriting, marketing, servicing and other related support activities incidental to the offer and sale of such financial services products; and
(4) factoring and/or licensed banking activities; or
B. a holding company of a Financial Services Subsidiary which carries on no material business or activity other than holding shares in that Financial Services Subsidiary and/or activities described in Clause (A) above.
“Global Security” means a Security that evidences all or part of the Securities of any series and bears the legend set forth in Section 2.04 (or such legend as may be specified as contemplated by Section 3.01 for such Securities).
“Government Securities” means securities that are (i) direct obligations of the United States of America for the timely payment of which its full faith and credit is pledged; or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America the timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either case, are not callable or redeemable at the option of the issuers thereof, and shall also include a depository receipt issued by a bank (as defined in Section 3(a)(2) of the Securities Act), as custodian with respect to any such Government Securities or a specific payment of principal of or interest on any such Government Securities held by such custodian for the account of the holder of such depository receipt; provided, however, that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Securities or the specific payment of principal of or interest on the Government Securities evidenced by such depository receipt.
“Guarantee” means a Guarantee of the Securities of a particular series pursuant to this Indenture which may be (i) endorsed on, and relate to, the Securities of a particular series authenticated and delivered hereunder or (ii) documented in any other manner permitted by law.
“Guarantor” means the Person named as the “Guarantor” in the first paragraph of this Indenture until a successor Person shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Guarantor” shall mean such successor Person.
“Holder” means a Person in whose name a Security is registered in the Security Register.
“Indebtedness” means any indebtedness (whether principal, premium or interest) for or in respect of (A) any notes, bonds, debenture stock, loan stock or other securities, (B) any Loan Financing, or (C) any liability under or in respect of any banker’s acceptance or banker’s acceptance credit; provided, that (x) indebtedness of a Member of the Group to any other Member of the Group and (y) indebtedness that qualifies as Non-recourse Securitization Debt shall, in each case, not be deemed to be Indebtedness for purposes of Section 10.09 or any other purpose of the Indenture or the Securities.
“Indenture” means this instrument as originally executed and as it may from time to time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof, including, for all purposes of this instrument and any such supplemental indenture, any such provisions of the Trust Indenture Act that are expressly stated herein to be a part of and govern this instrument and any such supplemental indenture, respectively. The term “Indenture” shall also include the terms of particular series of Securities established as contemplated by Section 3.01.
“Instructions” has the meaning specified in Section 1.05.
“Interest”, when used with respect to an Original Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity.
“Investment Grade” means a rating of BBB- or higher by S&P or a rating of Baa3 or higher by Moody’s or the equivalent of such ratings.
“Interest Payment Date”, when used with respect to any Security, means the Stated Maturity of an installment of interest on such Security.
“Investment Company Act” means the U.S. Investment Company Act of 1940 and any statute successor thereto, in each case as amended from time to time.
“Issue Date” means the date on which the Securities of the applicable Series are issued.
“Legal Defeasance” has the meaning specified in Section 14.02.
“Lien” has the meaning specified in Section 10.09.
“Loan Financing” means any money borrowed from (A) a bank, financial institution, hedge fund, pension fund, or insurance company or (B) any other entity having as its principal business the lending of money and/or investing in loans, in each case other than public or quasi-public entities or international organizations with a public or quasi-public character.
“Maturity”, when used with respect to any Security, means the date on which the principal of such Security or an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, call for redemption or otherwise.
“Material Subsidiary” means (A) Stellantis Europe S.p.A. (and any other Person Controlled by the Guarantor which Stellantis Europe S.p.A. is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (B) FCA US LLC (and any other Person Controlled by the Guarantor which FCA US LLC is consolidated or merged with or into or to whom all or substantially all of the assets of such entity is sold, assigned, transferred, leased or otherwise disposed of); (C) any Member of the Group the total assets or revenues of which on a stand-alone basis (excluding intra-Group items and as determined from the entity’s most recent financial statements on the basis of which the Guarantor’s most recent audited consolidated financial statements were prepared) constitutes 10% or more of the consolidated total assets or revenues of the Group (as determined from the Guarantor’s most recent audited consolidated financial statements); (D) any Treasury Subsidiary or (E) any entity under the Guarantor’s direct or indirect Control that directly or indirectly Controls a Subsidiary that meets the requirements of the preceding Clauses (A), (B), (C) or (D), provided that if any such entity Controls such a Subsidiary only pursuant to the aggregate ownership test specified in the proviso to Clause (1) of the definition of “Control,” “Controls” or “Controlled” below, then, and only then, the Company and the Guarantor shall have the right to designate which such entities shall be deemed to so Control such a Subsidiary provided that, in each case, such designated entities Control in the aggregate more than 50% of the relevant Subsidiary’s voting stock. For purposes of this definition of “Material Subsidiary,” (i) the term “Control,” “Controls” or “Controlled” means (1)
the direct or indirect ownership (beneficial or otherwise) of more than 50% of the voting stock of a Person measured by voting power rather than number of shares, provided that to the extent that no single entity directly owns more than 50% of the voting stock of a Person, entities with aggregate direct or indirect ownership of more than 50% of the voting stock of a Person will be deemed to Control such Person or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a Person and (ii) no Financial Services Subsidiary shall be considered or deemed to be a Material Subsidiary. Notwithstanding the foregoing, a Subsidiary shall be considered or deemed to be a Material Subsidiary only to the extent that such is located or domiciled in an OECD Country (or, to the extent that the OECD or a successor organization no longer exists, the countries that were members of the relevant organization on the date such organization ceased to exist).
“Member of the Group” means each of the Guarantor and any direct or indirect Subsidiary it fully consolidates on the basis of which the Guarantor’s most recent audited consolidated financial statements were prepared.
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Non-recourse Securitization” means any securitization, asset-backed financing, transfer or transaction having a similar effect of Securitizable Assets, for which the issuers or borrowers do not provide recourse for credit losses other than Standard Securitization Undertakings.
“Non-recourse Securitization Debt” means any Indebtedness incurred by a Securitization Entity pursuant to a securitization of receivables where the recourse in respect of that Indebtedness to the Company or the Guarantor is limited to:
A. those receivables and/or related insurance and/or any Standard Securitization Undertakings; and
B. if those receivables comprise all or substantially all of the business or assets of such Securitization Entity, the shares or other interests of any Member of the Group in such Securitization Entity; provided that any Indebtedness not qualifying as Non-recourse Securitization Debt solely because the extent of recourse to any Member of the Group with respect to such Indebtedness is greater than that provided in Clauses (A) and (B) above shall only not qualify as Non-recourse Securitization Debt with respect to the extent of such additional recourse.
“OECD” means the Organization for Economic Co-operation and Development.
“OECD Country” means a country that is a member of the OECD or any successor organization at the time of the occurrence of a payment default or acceleration specified in the Event of Default (or, to the extent that the OECD or a successor organization no longer exists, at the time the relevant organization ceased to exist).
“Officer” means, with respect to any Person, the chairman of the board, the chief executive officer, the chief financial officer, the president, any executive vice president, senior
vice president or vice president, the treasurer or any assistant treasurer, the secretary or any assistant secretary for such Person, authorized to represent such Person in the relevant matter.
“Officer’s Certificate” means a certificate signed on behalf of the Company or the Guarantor, as the case may be, by an Officer of the Company or the Guarantor, as applicable, that meets the requirements set forth in this Indenture.
“Opinion of Counsel” means a written opinion from legal counsel, which may be an employee of or counsel to the Company or the Guarantor, as the case may be.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.02.
“Outstanding”, when used with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered to the Trustee for cancellation;
(2) Securities for whose payment or redemption money in the necessary amount has been theretofore deposited with the Trustee or any Paying Agent (other than the Company or the Guarantor) in trust or set aside and segregated in trust by the Company or the Guarantor (if the Company or the Guarantor, as applicable, acts as its own Paying Agent) for the Holders of such Securities; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
(3) Securities as to which Legal Defeasance has been effected pursuant to Section 14.02; and
(4) Securities which have been paid pursuant to Section 3.06 or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; provided, however, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given, made or taken any request, demand, authorization, direction, notice, consent, waiver or other action hereunder as of any date, (A) the principal amount of an Original Issue Discount Security which shall be deemed to be Outstanding shall be the amount of the principal thereof which would be due and payable as of such date upon acceleration of the Maturity thereof to such date pursuant to Section 5.02, (B) if, as of such date, the principal amount payable at the Stated Maturity of a Security is not determinable, the principal amount of such Security which shall be deemed to be Outstanding shall be the amount as specified or determined as contemplated by Section 3.01, (C) the principal amount of a Security denominated in one or more foreign currencies or currency units which shall be deemed to be Outstanding shall be the U.S. dollar equivalent, determined as of such date in the manner provided as contemplated by Section 3.01, of the principal amount of such Security (or, in the case of a Security described in Clause (A) or (B) above, of the amount
determined as provided in such Clause) and (D) Securities owned by the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent, waiver or other action, only Securities which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded. Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company, the Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor or of such other obligor.
“Par Call Date” has the meaning specified in Section 2.03.
“Payor” has the meaning specified in Section 2.03.
“Paying Agent” means any Person (which may include the Company, the Guarantor or the Trustee) authorized by the Company or the Guarantor to pay the principal of or any premium or interest on any Securities on behalf of the Company or the Guarantor.
“Permitted Liens” means:
A. Liens existing on the Issue Date;
B. Liens arising by operation of law, by contract having an equivalent effect, from rights of set-off arising in the ordinary course of business between the Company or the Guarantor, as the case may be, and any of their respective suppliers or customers, or from rights of set-off or netting arising by operation of law (or by contract having similar effect) by virtue of the provision to the Company or the Guarantor, as the case may be, of clearing bank facilities or overdraft facilities;
C. any Lien over:
(1) the receivables of a Securitization Entity (and any bank account to which such proceeds are deposited) which are subject to a Non-recourse Securitization as security for Non-recourse Securitization Debt raised by such Securitization Entity in respect of such receivables; and/or
(2) the shares or other interests owned by any Member of the Group in any Securitization Entity as security for Non-recourse Securitization Debt raised by such Securitization Entity provided that the receivables or revenues which are the subject of the relevant Non-recourse Securitization comprise all or substantially all of the business of such Securitization Entity;
D. any Liens on assets acquired by a Member of the Group after the Issue Date, provided that (i) such Lien was existing or agreed to be created at or before the time the relevant asset was acquired by a Member of the Group, (ii) such Lien was not created in contemplation of such acquisition, and (iii) the principal amount then secured does not exceed the principal amount of the committed financing then secured (whether or not drawn), with respect to such assets at the time the relevant asset was acquired by a Member of the Group;
E. any Lien created to secure all or any part of the purchase price, or to secure Quoted Indebtedness incurred or assumed to pay all or any part of the purchase price or cost of construction, of property (or any improvement thereon) acquired or constructed by the Company or the Guarantor after the Issue Date, provided, that (i) any such Lien shall extend solely to the item or items of property (or improvement thereon) so acquired or constructed and (ii) the principal amount of Quoted Indebtedness secured by any such Lien shall at no time exceed an amount equal to the fair market value of such property (or any improvement thereon) at the time of such acquisition or construction;
F. any Lien securing Quoted Indebtedness incurred to refinance other indebtedness itself secured by a Lien included in Clauses (A), (B), (D) or (E) above, but only if the principal amount of the Quoted Indebtedness is not increased and only the same assets are secured as were secured by the prior Lien;
G. any Lien provided in favor of any bank or governmental (central or local), intergovernmental or supranational body, agency, department or other authority securing any of the Company’s or the Guarantor’s Quoted Indebtedness under a loan scheme operated by (or on behalf of) Banco Nacional de Desenvolvimento Economico e Social, Finame, Banco de Minas Gerais, the United States Department of Energy, the United States Department of the Treasury, a member country of the OECD, Argentina, Brazil, China, India, South Africa or any supranational entity (such as the European Bank for Reconstruction and Development or the International Finance Corporation) where the provision of such Lien is required for the relevant loan; or
H. (i) any Lien created on the shares of capital stock of any of the Guarantor’s subsidiaries, and (ii) any Lien created on the assets of any of the Guarantor’s subsidiaries of the type described in Clause (E) above other than shares of capital stock of any of the Guarantor’s subsidiaries.
“Person” means any individual, firm, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other entity.
“Peugeot Invest” means the société anonyme registered with the registre du commerce et des sociétés of Nanterre under number 562 075 390.
“Place of Payment”, when used with respect to the Securities of any series, means the place or places where the principal of and any premium and interest on the Securities of that series are payable as specified by Section 3.01.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 3.06 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security.
“Qualifying Guarantee” means a direct or indirect guarantee in respect of any Indebtedness or a direct or indirect indemnity against the consequences of a default in the payment of any Indebtedness, other than, in each case, by endorsement of negotiable instruments, letters of credit or reimbursement agreements in the ordinary course of business.
“Quoted Indebtedness” means any Indebtedness in the form of, or represented by, bonds, notes, debentures, loan stock or other securities and which at the time of issue is, or is capable of being, quoted, listed or ordinarily dealt in on any stock exchange or over-the-counter market or other securities market (whether or not initially distributed by means of a private placement).
“Rating Agency ” means Moody’s or S&P (each as herein defined), or, if either such entity ceases to rate the Notes for reasons outside of the control of the Guarantor (where applicable) or the Company, any other “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) of the Exchange Act.
“Rating Date” means (i) the date one Business Day prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only with respect to the type of transaction specified in clause (1) of the definition of Change of Control, the date one Business Day before the first public announcement of a definitive agreement with respect to such transaction and (ii) in the event that a Rating Agency has announced a Rating Decline of the Securities within 90 calendar days prior to the occurrence of an event specified in clauses (1) or (2) of the definition of Change of Control or, if applicable, and only with respect to the type of transaction specified in clause (1) of the definition of Change of Control, within 90 calendar days before the first public announcement of a definitive agreement with respect to such transaction, and the official statement issued by a Rating Agency announcing the Rating Decline refers to such event or transaction as a reason for such downgrade, the date one Business Day prior to such announcement by a Rating Agency.
“Rating Decline”, with respect to a series of Securities, means the occurrence on any date within the 90-calendar day period following the occurrence of the event specified in clauses (1) or (2) of the definition of a Change of Control (which period shall be extended so long as during such period any rating of the Securities of the applicable series is under publicly announced consideration for possible downgrade by a Rating Agency, provided that such extension shall not be for more than 30 calendar days) of: (i) in the event such Securities are rated by any Rating Agency on the Rating Date below Investment Grade (a) the rating of such Securities by such Rating Agency is downgraded by at least one rating category below the rating of such Securities by such Rating Agency on the Rating Date and not subsequently upgraded to its earlier rating (or better) by such Rating Agency within such period, or (b) such Securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate the earlier rating (or better) that it had assigned to such Securities during such period; or (ii) in the event such Securities are rated by any Rating Agency on the Rating Date as Investment Grade (a) the rating of such Securities by such Rating Agency is downgraded to below Investment Grade and not subsequently upgraded to Investment Grade by such Rating Agency within such period, or (b) such Securities cease to be rated by such Rating Agency and such Rating Agency does not subsequently reinstate an Investment Grade rating to such Securities during such period, provided that: (x) any such decision of the relevant Rating Agency to downgrade or cease to rate such Securities referred to in paragraph (i) or (ii) above shall not be deemed to have occurred in respect of a particular Change of Control if such Rating Agency does not publicly announce or
confirm that such decision was the result, in whole or in part, of the event specified in clauses (1) or (2) of the definition of a Change of Control; and (y) if at the time of the event specified in Clauses (1) or (2) of the definition of Change of Control such Securities are not rated by a Rating Agency, and no Rating Agency assigns an Investment Grade rating to such Securities within the 90-calendar day period following the occurrence of the event specified in clauses (1) or (2) of the definition of a Change of Control, a Rating Decline will be deemed to have occurred. In determining how many rating categories the rating of such Securities has decreased, gradation will be taken in account (e.g., with respect to S&P’s, a decline in a rating from BB+ to BB, or from BB to BB-, will constitute a decrease of one rating category).
“Redemption Date”, when used with respect to any Security to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price”, when used with respect to any Security to be redeemed, means the price (exclusive of any accrued interest) at which it is to be redeemed pursuant to this Indenture. The Trustee shall have no responsibility to calculate the Redemption Price.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Securities of any series means the date specified for that purpose as contemplated by Section 3.01.
“Related Party” means (i) each of the owners and beneficial holders of interests in Giovanni Agnelli B.V. (at the Issue Date) and each of their spouses, heirs, legatees, descendants and blood relatives to the third degree, (ii) Giovanni Agnelli B.V., (iii) any Person directly or indirectly under the Control of Giovanni Agnelli B.V., (iv) Etablissements Peugeot Frères, (v) any Person directly or indirectly under the Control of Etablissements Peugeot Frères, (vi) Peugeot Invest, or (vii) any Person directly or indirectly under the Control of Peugeot Invest. For the purposes of this definition, the term “Control” means (1) the direct or indirect ownership (beneficial or otherwise) of more than 50% of the Voting Stock of a Person measured by voting power rather than number of shares or (2) the power to appoint or remove all or the majority of the directors or other equivalent officers of a Person.
“Relevant Jurisdiction” has the meaning specified in Section 2.03.
“Responsible Officer”, when used with respect to the Trustee, means any vice president, assistant vice president, assistant secretary, any senior associate, any associate, any trust officer or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and familiarity with the particular subject, in each case having direct responsibility for the administration of this Indenture.
“Securities” has the meaning stated in the first recital of this Indenture and more particularly means any Securities authenticated and delivered under this Indenture.
“Securities Act” means the U.S. Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.05.
“Securitizable Asset” means receivables, loans, installment sales contracts, leases and/or leased assets, and incidental assets related thereto (or any interests therein) or interests or securities representing or dependent on collection of any of the foregoing.
“Securitization Entity” means any special purpose vehicle created for the sole purpose of carrying out, or otherwise used solely for the purpose of carrying out a Non-recourse Securitization or any other Subsidiary which is effecting Non-recourse Securitization.
“Special Record Date” for the payment of any Defaulted Interest means a date fixed by the Trustee pursuant to Section 3.07.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Standard Securitization Undertaking” means representations, warranties, covenants, guarantees and indemnities entered into by any Member of the Group from time to time which are customary in relation to Non-recourse Securitization, including any payment or performance undertakings with respect to origination or servicing obligations or undertakings with respect to breaches of representations or warranties.
“Stated Maturity”, when used with respect to any Security or any installment of principal thereof or interest thereon, means the date specified in such Security as the fixed date on which the principal of such Security or such installment of principal or interest is due and payable.
“Subsidiary” means, with respect to any Person: (1) any corporation, association, or other business entity (other than a partnership, joint venture, limited liability company or similar entity) more than 50% of the outstanding capital stock of which is owned, directly or indirectly, by such Person or by one or more other Subsidiaries of such Person, or by such Person and one or more other Subsidiary of such Person; and (2) any partnership, joint venture, limited liability company or similar entity of which (a) more than 50% of the capital accounts, distribution rights, total equity and voting interests or general or limited partnership interests, as applicable, are owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof whether in the form of membership, general, special or limited partnership or otherwise, or (b) such Person is a controlling general partner or otherwise controls such entity.
“Substitute” has the meaning specified in Section 8.04.
“Substitution by Guarantor Documents” has the meaning specified in Section 8.03.
“Substitution by Treasury Subsidiary Documents” has the meaning specified in Section 8.04.
“Taxes” has the meaning specified in Section 2.03.
“Treasury Rate” has the meaning specified in Section 2.03.
“Treasury Subsidiary” means (A) Fiat Chrysler Finance Europe société en nom collectif, acting through its UK Branch (B) Stellantis Finance US Inc., and (C) any other Subsidiary of the Guarantor the primary purpose of which is borrowing funds, issuing securities or incurring Indebtedness from third parties. For the avoidance of doubt, “Treasury Subsidiary” does not, and shall not be deemed to, include any Financial Services Subsidiary.
“Trust Indenture Act” means the U.S. Trust Indenture Act of 1939, including the rules promulgated thereunder, as in force at the date as of which this instrument was executed; provided, however, that in the event the Trust Indenture Act of 1939 is amended after such date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended and any successor statute thereto.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder, and if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of any series shall mean the Trustee with respect to Securities of that series.
“Voting Stock” of any Person as of any date means the capital stock of such Person that is at the time entitled to vote in the election of the board of directors of such Person.
SECTION 1.02. Compliance Certificates and Opinions.
Upon any application or request by the Company or the Guarantor to the Trustee to take any action under any provision of this Indenture, the Company or the Guarantor, as applicable, shall furnish to the Trustee such certificates and opinions as may be required under the Trust Indenture Act. Each such certificate or opinion shall be given in the form of an Officer’s Certificate, if to be given by an Officer of the Company or the Guarantor or an Opinion of Counsel, if to be given by counsel, and shall in each case comply with the requirements of the Trust Indenture Act and any other requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (except for certificates provided for in Section 10.04) shall include,
(1) a statement that each individual signing such certificate or opinion has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 1.03. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Officer of the Company 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 or opinion is based are erroneous. Any such certificate or opinion of, or representation by, counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an Officer or Officers of the Company or the Guarantor, as applicable, stating that the information with respect to such factual matters is in the possession of the Company or the Guarantor, as applicable, unless such counsel knows that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 1.04. Acts of Holders; Record Dates.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by an agent duly appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments, or record or both, are delivered to the Trustee and, where it is hereby expressly required, to the Company or the Guarantor. Such instrument or instruments (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the “Act” of the Holders signing such instrument or instruments. Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.01) conclusive in favor of the Trustee, the Company and the Guarantor, if made in the manner provided in this Section 1.04.
The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof, or may be proved in such other manner as shall be deemed sufficient by the Trustee. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security Register.
Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, the Company or the Guarantor, in reliance thereon, whether or not notation of such action is made upon such Security.
The Company or the Guarantor may, in the circumstances permitted by the Trust Indenture Act, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to give, make or take any request, demand, authorization, direction, notice, consent, waiver or other action provided or permitted by this Indenture to be given, made or taken by Holders of Securities of such series; provided that the Company and the Guarantor may not set a record date for, and the provisions of this paragraph shall not apply with respect to, the giving or making of any notice, declaration, request or direction referred to in the next paragraph. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of the relevant series on such record date, and no other Holders, shall be entitled to take the relevant action, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Company or the Guarantor from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Company or the Guarantor, at its own expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Trustee in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
The Trustee may, in the circumstances permitted by the Trust Indenture Act, set any day as a record date for the purpose of determining the Holders of Outstanding Securities of any series entitled to join in the giving or making of (i) any notice of default, (ii) any declaration of acceleration referred to in Section 5.02, (iii) any request to institute proceedings referred to in Section 5.07(2) or (iv) any direction referred to in Section 5.12, in each case with respect to Securities of such series. If any record date is set pursuant to this paragraph, the Holders of Outstanding Securities of such series on such record date, and no other Holders, shall be entitled to join in such notice, declaration, request or direction, whether or not such Holders remain Holders after such record date; provided that no such action shall be effective hereunder unless taken on or prior to the applicable Expiration Date by Holders of the requisite principal amount of Outstanding Securities of such series on such record date. Nothing in this paragraph shall be construed to prevent the Trustee from setting a new record date for any action for which a record date has previously been set pursuant to this paragraph (whereupon the record date previously set shall automatically and with no action by any Person be cancelled and of no effect), and nothing
in this paragraph shall be construed to render ineffective any action taken by Holders of the requisite principal amount of Outstanding Securities of the relevant series on the date such action is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s or the Guarantor’s expense, shall cause notice of such record date, the proposed action by Holders and the applicable Expiration Date to be given to the Company or the Guarantor in writing and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06.
With respect to any record date set pursuant to this Section 1.04, the party hereto which sets such record dates may designate any day as the “Expiration Date” and from time to time may change the Expiration Date to any earlier or later day; provided that no such change shall be effective unless notice of the proposed new Expiration Date is given to the other party hereto in writing, and to each Holder of Securities of the relevant series in the manner set forth in Section 1.06, on or prior to the existing Expiration Date. If an Expiration Date is not designated with respect to any record date set pursuant to this Section 1.04, the party hereto which set such record date shall be deemed to have initially designated the 180th day after such record date as the Expiration Date with respect thereto, subject to its right to change the Expiration Date as provided in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any action hereunder with regard to any particular Security may do so with regard to all or any part of the principal amount of such Security or by one or more duly appointed agents each of which may do so pursuant to such appointment with regard to all or any part of such principal amount.
SECTION 1.05. Notices, Etc., to Trustee, the Company and the Guarantor.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the Guarantor shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company or the Guarantor by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in writing and sent to the Company or the Guarantor, as applicable, addressed to it at the address of its principal office specified in the first paragraph of this instrument, or at any other address previously furnished in writing to the Trustee by the Company or the Guarantor, as applicable. The Company, the Guarantor or the Trustee by written notice to the others may designate additional or different addresses for subsequent notices or communications.
(3) the Trustee shall have the right to accept and act upon instructions, including funds transfer instructions (“Instructions”) given pursuant to this Indenture and delivered using Electronic Means; provided, however, that the Company and/or the Guarantor, as applicable, shall provide to the Trustee an incumbency certificate listing officers with the authority to provide such Instructions (“Authorized Persons”) and containing specimen signatures of such
Authorized Persons, which incumbency certificate shall be amended by the Company and/or the Guarantor, as applicable, whenever a person is to be added or deleted from the listing. If the Company and/or the Guarantor, as applicable, elects to give the Trustee Instructions using Electronic Means and the Trustee in its discretion elects to act upon such Instructions, the Trustee’s understanding of such Instructions shall be deemed controlling. The Company and the Guarantor understand and agree that the Trustee cannot determine the identity of the actual sender of such Instructions and that the Trustee shall conclusively presume that directions that purport to have been sent by an Authorized Person listed on the incumbency certificate provided to the Trustee have been sent by such Authorized Person. The Company and the Guarantor shall be responsible for ensuring that only Authorized Person transmit such Instructions to the Trustee and that the Company, the Guarantor and all Authorized Persons are solely responsible to safeguard the use and confidentiality of applicable user and authorization codes, passwords and/or authentication keys upon receipt by the Company and/or the Guarantor, as applicable. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s reliance upon and compliance with such Instructions notwithstanding such directions conflict or are inconsistent with a subsequent written instruction. The Company and the Guarantor agree, other than, in each case, with respect to gross negligence or willful misconduct on the part of the Trustee arising out of or in connection with any such actions taken or omitted: (i) to assume all risks arising out of the use of Electronic Means to submit Instructions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized Instructions, and the risk of interception and misuse by third parties; (ii) that it is fully informed of the protections and risks associated with the various methods of transmitting Instructions to the Trustee and that there may be more secure methods of transmitting Instructions than the method(s) selected by the Company and/or the Guarantor, as applicable; (iii) that the security procedures (if any) to be followed in connection with its transmission of Instructions provide to it a commercially reasonable degree of protection in light of its particular needs and circumstances; and (iv) to notify the Trustee immediately upon learning of any compromise or unauthorized use of the security procedures.
SECTION 1.06. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice shall be deemed to have been duly given (unless otherwise herein expressly provided including redemption notices to Holders pursuant to Article Eleven hereof) if in writing and sent to each Holder affected by such event, at his or her address as it appears in the Security Register, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice. 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 regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail as contemplated herein, then such notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice of any event to a Holder of a Global Security, such notice shall be sufficiently given if given to the Depositary for such Security (or its designee), pursuant to its applicable procedures, not later than the latest date (if any), and not earlier than the earliest date (if any), prescribed for the giving of such notice.
SECTION 1.07. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of the Trust Indenture Act which is required under the Trust Indenture Act to be a part of and govern this Indenture, the latter provision shall control. If any provision of this Indenture modifies or excludes any provision of the Trust Indenture Act which may be so modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified or to be excluded, as the case may be.
SECTION 1.08. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.09. Successors and Assigns.
All covenants and agreements in this Indenture by the Company and the Guarantor shall bind each of their respective successors and assigns, whether so expressed or not. All covenants and agreements of the Trustee in this instrument shall bind its successors and assigns.
SECTION 1.10. Separability Clause.
In case any provision in this Indenture, in any Guarantee or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.11. Benefits of Indenture.
Nothing in this Indenture, in the Securities or in the Guarantees, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 1.12. Governing Law; Waiver of Jury Trial
This Indenture, the Guarantees and the Securities shall be governed by and construed in accordance with the law of the State of New York. EACH OF THE COMPANY, THE GUARANTOR, THE HOLDERS 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 1.13. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Maturity of any Security shall not be a Business Day, then (notwithstanding any other provision of this Indenture or of the Securities (other than a provision of any Security established as contemplated by Section 3.01 and which specifically states that such provision shall apply in lieu of this Section 1.13) payment of interest or principal (and premium, if any) 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 Interest Payment Date or Redemption Date, or at the Maturity; provided that no interest shall accrue with respect to such payment for the period from and after such Interest Payment Date, Redemption Date or Maturity, as the case may be to the date of such payment (unless otherwise provided).
SECTION 1.14. Authorized Agent; Submission to Jurisdiction; Waiver of Immunity.
(1) By the execution and delivery of this Indenture the Guarantor (i) acknowledges that it will, by separate written instrument, designate and appoint Fiat Chrysler Finance North America Inc., 1000 Chrysler Drive, Auburn Hills, MI 48326 (the “Authorized Agent”) (and any successor entity) as its authorized agent upon which process may be served in any suit or proceeding arising out of or relating to this Indenture that may be instituted in any U.S. federal or state court in the State of New York, New York County or brought under U.S. federal or state securities laws, and acknowledge that the Authorized Agent will accept such designation, (ii) submits itself and its property to the non-exclusive jurisdiction of any such court in any such suit or proceeding, (iii) consent that any such proceeding may be brought in any such court and any objection that it may now or hereafter have to the venue of any such proceeding in any such court or that such proceeding was brought in any inconvenient court and agrees not to plead or claim the same, (iv) agrees not to dispute that such service of process upon the Authorized Agent and written notice of said service to the Guarantor in accordance with Section 1.05 will be in every respect effective service of process upon the Guarantor in any such suit or proceeding and (v) agrees that nothing herein shall affect the right to effect service of process in any other manner permitted by law or shall limit the right to sue in any other jurisdiction.
(2) To the extent that the Guarantor may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to or arising out of this Indenture, to claim for itself or its revenues, assets or properties immunity (whether by reason of sovereignty or otherwise) from suit, from the jurisdiction of any court (including but not limited to any court of the United States of America or the State of New York), from attachment prior to judgment, from setoff, from execution of a judgment or from any other legal process, and to the extent that in any such jurisdiction there may be attributed such an immunity (whether or not claimed), the Guarantor hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity to the extent permitted by law.
ARTICLE TWO
SECURITY FORMS
SECTION 2.01. Forms Generally.
The Securities of each series shall be in substantially the form set forth in this Article Two, or in such other form as shall be established from time to time by or pursuant to a Board Resolution and, subject to Section 3.03, determined in the manner provided in the Officer’s Certificate of the Company or established 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 or any indentures supplemental hereto, and may have such letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the provisions of this instrument, or as may be required to comply with the rules of any securities exchange or Depositary therefor or as may, consistently herewith, be determined by the Officers executing such Securities, as evidenced by their execution thereof. If the form of Securities of any series is established by action taken pursuant to a Board Resolution, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
Any Guarantee to be endorsed on and to relate to the Securities of any series shall each be in substantially the applicable form set forth in this Article Two, or in such other form as shall be established from time to time by or pursuant to a Board Resolution or determined in a manner provided in the Officer’s Certificate of the Guarantor or established 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 or any indentures supplemental hereto, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon as may be required to comply with the rules of any securities exchange or as may, consistently herewith, be determined by the officers executing such Guarantees, as evidenced by their execution of the Guarantees. If the form of the Guarantee is to be endorsed on the Securities of any series and such form of Guarantee is established by action taken pursuant to a Board Resolution of the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary, or officer or person serving in a similar capacity, of the applicable Guarantor and delivered to the Trustee at or prior to the delivery of the Company Order contemplated by Section 3.03 for the authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved on steel engraved borders or may be produced in any other manner, all as determined by the Officers executing such Securities, as evidenced by their execution of such Securities.
SECTION 2.02. Form of Face of Security.
The Securities shall be in substantially the following form:
[Insert any legend required by the Internal Revenue Code and the regulations thereunder.]
CUSIP No.
[Title of Security]
No. $ .
STELLANTIS FINANCE US INC.
Stellantis Finance US Inc, a corporation under the laws of the State of Delaware (herein called the “Company”, which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to ___________, or registered assigns, the principal sum of ______________ U.S. dollars on ______________[if this Security is to bear interest prior to Maturity, insert – , and to pay interest thereon from __________or the most recent Interest Payment Date to which interest has been paid or duly provided for, [semi-annually] in arrears on ________ and ________ in each year, commencing __________, at the rate of % per annum, until the principal hereof is paid or made available for payment, [if applicable, insert – provided that any principal and premium, and any such installment of interest, which is overdue shall bear interest at the rate of % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment, and such interest shall be payable on demand]. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, which shall be _________ or __________ (whether or not a Business Day), as the case may be, next preceding such Interest Payment Date. Any such interest so payable, but not punctually paid or duly provided for, on any Interest Payment Date will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Security (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of Securities of this series not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Securities of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.]
[If the Security is not to bear interest prior to Maturity, insert – The principal of this Security shall not bear interest except in the case of a default in payment of principal upon acceleration, upon redemption or at Stated Maturity and in such case the overdue principal and any overdue premium shall bear interest at the rate of ____ % per annum (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they are paid or made available for payment.]
Payment of the principal of (and premium, if any) and [if applicable, insert – any such] interest on this Security shall be made at the office or agency of the Company maintained for that purpose in New York, New York, in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts, against surrender of this Security in the case of any payment due at the Maturity of the principal hereof (other than any payment of interest that first becomes payable on a day other than an Interest Payment Date); provided, however, that at the option of the Company payment of interest may be made (1) by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register, or (2) by wire transfer in immediately available funds at the bank account number maintained within the United States as may be designated by the Person entitled thereto, as specified in the Security Register in writing; and provided, further, that if this Security is a
Global Security, payment shall be made pursuant to the applicable procedures of the Depositary as permitted in the Indenture.
Reference is hereby made to the further provisions of this Security set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the Trustee or an authentication agent on its behalf referred to on the reverse hereof by manual or electronic signature, this Security shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by manual or electronic signature by a duly authorized Officer of the Company.
Dated __________
STELLANTIS FINANCE US INC.,
As the Company
By: _________________________
SECTION 2.03. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the Company of this series (herein called the “Securities”), issued and to be issued in one or more series under an Indenture, dated as of , 20 (the “Indenture”), between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”, which term includes any successor trustee under the Indenture), and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Securities and of the terms upon which the Securities are, and are to be, authenticated and delivered. This Security is one of the series designated on the face hereof [if applicable, insert – [initially] limited in an aggregate principal amount to $__________, [provided that the Company may, without the consent of any Holder, at any time and from time to time increase the initial principal amount.] Unless otherwise defined, all terms used herein which are defined in the Indenture shall have the meanings assigned to them in the Indenture.
Save for any provision as to withholding or deduction of taxes, no reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Security at the times, place and rate, and in the coin or currency, herein prescribed.
[If applicable, insert – In the event that the Company or the Guarantor becomes obligated to make payments in respect of the Securities, the Company or the Guarantor, as applicable, shall
make all payments of principal of (and premium, if any, on), interest on (whether on scheduled payment dates or upon acceleration) any Securities, free and clear of, and without withholding or deduction for, or on account of, any present or future taxes, duties, assessments or governmental charges of whatever nature (collectively, “Taxes”) imposed, collected, withheld, assessed or levied by or on behalf of any jurisdiction in which the Company, the Guarantor, a Paying Agent, or any other Person on behalf of the Company or the Guarantor, or any successor thereto (each, a “Payor”) is incorporated, organized or tax resident, or any governmental authority or political subdivision thereof or therein having the power to tax (a “Relevant Jurisdiction”), unless the withholding or deduction of the Taxes is required by law of any Relevant Jurisdiction.
Where the withholding or deduction of Taxes is required by the law of any Relevant Jurisdiction, the Payor will, subject to the exceptions and limitations set forth below, pay as additional interest on the Securities such additional amounts (“Additional Amounts”) as are necessary so that the net payment by the Company or the Guarantor or a paying agent or other Payor of the principal of and interest on such Securities, after deduction for any present or future tax, assessment or governmental charge of a Relevant Jurisdiction, imposed by withholding with respect to the payment, will not be less than the amount that would have been payable in respect of such Securities had no withholding or deduction been required. Any obligation to pay Additional Amounts shall not apply:
(1) to any Taxes that are only payable because a present or former type of connection exists or existed between the Holder or beneficial owner of the Securities and a Relevant Jurisdiction other than a connection related solely to purchase, ownership or mere holding of the Securities or the receipt of principal or interest in respect of it;
(2) to any Taxes that are imposed or withheld by the United States of America solely because the beneficial owner, or a fiduciary, settlor, beneficiary or member of the beneficial owner if the beneficial owner is an estate, trust or partnership, or a person holding a power over an estate or trust administered by a fiduciary holder:
a. is or was a citizen or resident or is or was treated as a resident of the United States of America;
b. is or was a personal holding company, a passive foreign investment company or a controlled foreign corporation with respect to the United States of America or is or was a corporation that has accumulated earnings to avoid United States of America federal income tax;
c. is or was a bank receiving interest described in Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended (the “Code”);
d. is or was an actual or constructive owner of 10% or more of the total combined voting power of all classes of stock of the Company or the Guarantor entitled to vote; or
e. is or was subject to tax under Section 4948(a) of the Code;
(3) to any Holder of the Securities that is not the sole beneficial owner of such Securities, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that the
beneficial owner, a beneficiary or settlor with respect to the fiduciary, or a member of the partnership would not have been entitled to the payment of an Additional Amount had such beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment;
(4) to any Taxes that are imposed or withheld because the beneficial owner of the Securities or any other person failed to accurately comply with a request from the Company, the Guarantor or any paying agent to meet certification, identification or information reporting requirements concerning the nationality, residence or identity of the Holder or beneficial owner of the Securities or to satisfy any information or reporting requirement, or to present the relevant Security (if certificated), if compliance such action is required as a precondition to exemption from, or reduction in, such tax, assessment or other governmental charge by the Relevant Jurisdiction;
(5) to any Taxes that are imposed other than by withholding or deduction by the Company or the Guarantor or a paying agent from the payment;
(6) to any Taxes that are imposed or withheld solely because of a change in law, regulation, or administrative or judicial interpretation that becomes effective after the day on which the payment becomes due or is duly provided for, whichever occurs later;
(7) to any estate, inheritance, gift, sales, excise, transfer, wealth, personal property or similar Taxes;
(8) to any Taxes any paying agent (which term may include the Company and the Guarantor) must withhold from any payment of principal of or interest on any Securities, if such payment can be made without such withholding by any other paying agent;
(9) to any Taxes imposed pursuant to the Dutch Withholding Tax Act 2021 (Wet Bronbelasting 2021); or
(10) in the case of any combination of the above items.
In addition, any amounts to be paid on the Securities shall be paid net of any deduction or withholding imposed or required pursuant to Sections 1471 through 1474 of the Code, any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code, or any fiscal or regulatory legislation, rules or practices adopted pursuant to any intergovernmental agreement entered into in connection with the implementation of such Sections of the Code, and no Additional Amounts shall be required to be paid on account of any such deduction or withholding.
Whenever in this Security or the Indenture there is mentioned, in any context other than the case of Section 5.02 of the Indenture, the payment of principal (and premium, if any) [if applicable, insert - the Redemption Price, if any,] interest or any other amount payable under or with respect to the Securities, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context Additional Amounts are, were or would be payable by the Company or the Guarantor in respect thereof.]
[If applicable, insert – Prior to ____________ (the “Par Call Date”), the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a Redemption Price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Securities matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus _____ basis points, less (b) interest accrued to the Redemption Date, and
(2) 100% of the principal amount of the Securities to be redeemed,
plus, in either case, accrued and unpaid interest thereon to the Redemption Date.
On or after the Par Call Date, the Company may redeem the Securities at its option, in whole or in part, at any time and from time to time, at a Redemption Price equal to _____% of the principal amount of the Securities to be redeemed plus accrued and unpaid interest thereon to the Redemption Date.
“Treasury Rate” means, with respect to any Redemption Date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third Business Day preceding the Redemption Date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the Redemption Date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the Redemption Date.
If on the third Business Day preceding the Redemption Date H.15 or any successor designation or publication is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m.,
New York City time, on the second Business Day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company’s actions and determinations in determining the Redemption Price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption shall be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the Redemption Date to each holder of Securities to be redeemed except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a defeasance of the Securities or a satisfaction and discharge of the Indenture.
In the case of a partial redemption, selection of the Securities for redemption shall be made by lot. For so long as the Securities are held by DTC, Euroclear or Clearstream (or another depositary), the redemption of the Securities shall be done in accordance with the policies and procedures of the depositary.]
[If applicable, insert – The Securities are subject to redemption upon not less than ___days’ nor more than ___ days’ notice, [if applicable, insert – (1) on _____________ in any year commencing with the year __________ and ending with the year __________ through operation of the sinking fund for this series at a Redemption Price equal to ___% of the principal amount, and (2)] at any time [if applicable, insert – on or after ________, 20 ____ ], as a whole or in part, at the election of the Company, at the following Redemption Prices (expressed as percentages of the principal amount): If redeemed during the 12-month period beginning _______ of the years indicated,
Year Redemption Price Year Redemption Price
and thereafter at a Redemption Price equal to ____% of the principal amount, together in the case of any such redemption [(whether through operation of the sinking fund or otherwise)] with accrued interest to the Redemption Date, but interest installments whose Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, of record at the close of business on the relevant record dates referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert – If (a) a Payor becomes or shall become obligated to pay Additional Amounts with respect to any Securities as result of any change in, or amendment to, the laws or regulations of a Relevant Jurisdiction, or any change in the official interpretation of the laws or regulations of a Relevant Jurisdiction, which change or amendment becomes effective after _______, 20___, and (b) such obligation cannot be avoided by the Company taking reasonable measures available to the Company, the Company may, at its option, having given not less than ___ days notice to the Holders of such Securities (which notice shall be irrevocable), redeem all, but not a portion of, the Securities at any time at ___ % of their principal amount, plus accrued but unpaid interest to, but excluding, the Redemption Date; provided that no such notice of redemption shall be given earlier than ___ days prior to the earliest date on which the applicable Payor would be obliged to pay such Additional Amounts were a payment in respect of the Securities then due. Prior to the delivery of any notice of redemption pursuant to this paragraph, the Company shall deliver to the Trustee (i) an Officer’s Certificate stating that the requirements referred to in (a) and (b) above are satisfied, and (ii) an Opinion of Counsel to the effect that the applicable Payor has or will become obliged to pay such Additional Amounts as a result of the change or amendment, in each case to be held by the Trustee and made available for viewing at the offices of the Trustee on written request by any Holder of the Securities.]
[If applicable, insert – The sinking fund for this series provides for the redemption on __________ in each year beginning with the year __________ and ending with the year __________ of [if applicable, insert – not less than $__________ (“mandatory sinking fund”) and not more than] $__________ aggregate principal amount of Securities of this series. Securities of this series acquired or redeemed by the Company otherwise than through [if applicable, insert – mandatory] sinking fund payments may be credited against subsequent [if applicable, insert – mandatory] sinking fund payments otherwise required to be made [if applicable, insert – , in the inverse order in which they become due].]
[If the Security is subject to redemption of any kind, insert – On and after the Redemption Date, interest shall cease to accrue on the Securities or any portion of the Securities called for redemption, unless the Company defaults in the payment of the Redemption Price and accrued interest. On or before the Redemption Date, the Company shall deposit with a Paying Agent or the Trustee money sufficient to pay the Redemption Price of and accrued interest on the Securities to be redeemed on that date. The Trustee shall not be responsible for determining or calculating the Redemption Price of the Securities or the Treasury Rate.
In the event of redemption of this Security in part only, a new Security or Securities of this series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the cancellation hereof.]
[If applicable, insert – The Indenture contains provisions for defeasance at any time of the entire indebtedness of this Security or certain restrictive covenants and Events of Default with respect to this Security, in each case upon compliance with certain conditions set forth in the Indenture.]
[If the Security is not an Original Issue Discount Security, insert – If an Event of Default with respect to the Securities shall occur and be continuing, the principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert – If an Event of Default with respect to the Securities shall occur and be continuing, an amount of principal of the Securities may be declared due and payable in the manner and with the effect provided in the Indenture. Such amount shall be equal to [– insert formula for determining the amount]. Upon payment (i) of the amount of principal so declared due and payable and (ii) of interest on any overdue principal, premium and interest (in each case to the extent that the payment of such interest shall be legally enforceable), all of the Company’s obligations in respect of the payment of the principal of and premium and interest, if any, on the Securities shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company or the Guarantor and the rights of the Holders of the Securities under the Indenture at any time by the Company or the Guarantor and the Trustee with the consent of the Holders of not less than a majority in principal amount of the Securities at the time Outstanding. The Indenture also contains provisions (i) permitting the Holders of not less than a majority of the aggregate principal amount of the Securities at the time Outstanding, on behalf of the Holders of all the Securities, to waive compliance by the Company and the Guarantor with certain provisions of the Indenture with respect to such Securities and (ii) permitting the Holders of a majority in principal amount of the Securities at the time Outstanding, on behalf of the Holders of the Securities, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security shall not have the right to institute any proceeding with respect to the Indenture, or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Securities, the Holders of at least 25% of the principal amount of the Securities at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee indemnity reasonably satisfactory to the Trustee, and the Trustee shall not have received from the Holders of a majority in principal amount of the Securities at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Security for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Security Register, upon surrender of this Security for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Security are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar
duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Securities of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without coupons in denominations of $__________ and any integral multiples of $_______ in excess thereof. As provided in the Indenture and subject to certain limitations therein set forth, the Securities are exchangeable for a like aggregate principal amount of Securities of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture, the obligations of the Company under the Indenture and this Security are guaranteed pursuant to the Guarantee endorsed hereon as provided in the Indenture. Each Holder, by holding this Security, agrees to all of the terms and provisions of said Guarantee.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee shall treat the Person in whose name this Security is registered as the owner hereof for all purposes, whether or not this Security be overdue, and none of the Company, the Guarantor, the Trustee and any such agent shall be affected by notice to the contrary.
[If applicable, insert – Except in the limited circumstances described in Section 3.05 of the Indenture, the Securities shall be issued in the form of one or more Global Securities and [____________] shall be the Depositary for such Global Securities.]
[If applicable, insert – Interest on the principal balance of this Security shall be calculated on the basis of a [365- or 366-day year, as appropriate, for the actual number of days elapsed] [360-day year of twelve 30-day months.]]
THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 2.04. Securities in Global Form.
If any Security of a series is issuable in global form, such Global Security may provide that it shall represent the aggregate amount of Outstanding Securities from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be reduced to reflect exchanges. Any endorsement of a Global Security to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee and in such manner as shall be specified in such Global Security.
Global Securities may be issued in either temporary or permanent form. Permanent Global Securities will be issued in definitive form.
Unless otherwise specified as contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security authenticated and delivered hereunder shall bear a legend in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
SECTION 2.05. Form of Trustee’s Certificate of Authentication.
The Trustee’s certificates of authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein and referred to in the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK MELLON,
as Trustee
By: [______________________________]
Authorized Signatory
SECTION 2.06. Form of Guarantee
(1) Any Guarantee shall be represented by a Guarantee endorsed on the Securities of the series covered by the applicable Guarantee or by any other means permitted by law.
(2) If the Guarantee is to be represented by a Guarantee endorsed on and relating to the Securities of a particular series authenticated and delivered hereunder, such Guarantee shall, subject to Section 2.01, be in substantially the form set forth below:
GUARANTEE
For value received, Stellantis N.V., a public company with limited liability (naamloze vennootschap) incorporated under Dutch law (herein called the “Guarantor” which terms include any successor Person under the Indenture referred to in the Security upon which this Guarantee is endorsed), hereby irrevocably, fully and unconditionally guarantees to the Trustee and to each Holder of this Security, which has been authenticated and delivered by the Trustee or its Authenticating Agent, the due and punctual payment of the principal of (including any amount in respect of original issue discount), and any premium and interest (together with any Additional
Amounts payable pursuant to the terms of this Security), on this Security [If applicable, insert – and the due and punctual payment of the sinking fund payments, if any,] and all other obligations of the Company to the Holders or the Trustee provided for pursuant to the terms of the Indenture and this Security, when and as the same shall become due and payable, whether at Stated Maturity or upon redemption or upon declaration of acceleration or otherwise according to the terms of this Security and of the Indenture. In case of default by the Company in the payment of any such principal (including any amount in respect of original issue discount), and any premium or interest (together with any Additional Amounts payable pursuant to the terms of this Security), [If applicable, insert – sinking fund payment], or analogous obligation, the Guarantor agrees duly and punctually to pay the same. The Guarantor hereby agrees that its obligations hereunder shall rank pari passu with all other unsecured and unsubordinated obligations of the Guarantor, shall be as principal and not merely as surety, and shall be absolute and unconditional irrespective of any extension of the time for payment of this Security, any modification of this Security, any invalidity, irregularity or unenforceability of this Security or the Indenture, any failure to enforce the same or any waiver, modification, consent or indulgence granted to the Company with respect thereto by the Holder of this Security or the Trustee, 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 or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, protest or notice with respect to this Security or the indebtedness evidenced thereby and all demands whatsoever, and covenants that this
Guarantee will not be discharged as to this Security except by payment in full of the principal of (including any amount payable in respect of original issue discount), and any premium and interest (together with any Additional Amounts payable pursuant to the terms of this Security), thereon. The Guarantor irrevocably waives any and all rights to which it may be entitled, by operation of law or otherwise, upon making any payment hereunder (i) to be subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in respect thereof or (ii) to receive any payment, in the nature of contribution or for any other reason, from any other obligor with respect to such payment. This Guarantee shall not be valid or become obligatory for any purpose with respect to this Security until the certificate of authentication on this Security shall have been signed by the Trustee.
The Guarantor, and by its acceptance of Securities, each Holder, hereby confirms that it is the intention of all such parties that this Guarantee not constitute (i) a fraudulent transfer or conveyance for purposes of bankruptcy law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal, state or foreign law to the extent applicable to this Guarantee or (ii) an unlawful distribution under any applicable state law prohibiting shareholder distributions by an insolvent Subsidiary to the extent applicable to the Guarantee.
All terms used in this Guarantee which are not defined herein shall have the meanings assigned to them in the Indenture or the Security upon which this Guarantee is endorsed.
This Guarantee is subject to certain limitations and waivers set forth in the Indenture, as it may be supplemented from time to time.
THIS GUARANTEE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the undersigned has caused this Guarantee to be signed manually or electronically by its duly authorized officer or representative.
STELLANTIS N.V.,
As Guarantor
By: [______________________________]
Authorized Signatory
ARTICLE THREE
THE SECURITIES
SECTION 3.01. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to a Board Resolution of the Company and, subject to Section 3.03, set forth, or determined in the manner provided, in an Officer’s Certificate of the Company or established in one or more indentures supplemental hereto, prior to the issuance of Securities of any series,
(1) any limit upon the aggregate principal amount of the Securities of the series which may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 3.04, 3.05, 3.06, Section 9.06 or 11.07 and except for any Securities which, pursuant to Section 3.03, are deemed never to have been authenticated and delivered hereunder);
(2) the Person to whom any interest on a Security of the series shall be payable, if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest;
(3) the date or dates on which the principal and any premium of any Securities of the series are payable or the method of determination thereof;
(4) the title of the Securities of the series (which shall distinguish the Securities of the series from Securities of any other series);
(5) the rate or rates (which may be fixed or variable), or the method of determination thereof, at which any Securities of the series shall bear interest, if any, including the rate of interest applicable on overdue payments of principal or interest, if different from the rate of interest stated in the title of the Security, the date or dates from which any such interest shall accrue, or the method of determination thereof, the Interest Payment Dates on which any such interest shall be payable and the Regular Record Date, if any, for any such interest payable on any Interest Payment Date and the basis upon which interest shall be calculated if other than that of a 360-day year of twelve 30 day months;
(6) the place or places where the principal of and any premium and interest on any Securities of the series shall be payable and the manner in which any payment may be made;
(7) the period or periods within which, the price or prices at which, the currency, currencies, currency unit or composite currency in which and the terms and conditions upon which any Securities of the series may be redeemed, in whole or in part, at the option of the
Company and, if other than by a Board Resolution, the manner in which any election by the Company to redeem the Securities shall be evidenced;
(8) the obligation, if any, of the Company to redeem or purchase any Securities of the series pursuant to any sinking fund or analogous provisions or at the option of the Holder thereof and the period or periods within which, the price or prices at which, the currency, currencies, currency unit or composite currency in which and the terms and conditions upon which any Securities of the series shall be redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which any Securities of the series shall be issuable;
(10) if the amount of principal of or any premium or interest on any Securities of the series may be determined with reference to a financial or economic measure or pursuant to a formula, the manner in which such amounts shall be determined;
(11) if other than the currency of the United States of America, the currency, currencies, currency units or composite currency in which the principal of or any premium or interest on any Securities of the series shall be payable and the manner of determining the equivalent thereof in the currency of the United States of America for any purpose, including for the purposes of making payment in the currency of the United States of America and applying the definition of “Outstanding” in Section 1.01;
(12) if the principal of or any premium or interest on any Securities of the series is to be payable, at the election of the Company or the Holder thereof, in one or more currencies, currency units or composite currencies other than that or those in which such Securities are stated to be payable, the currency, currency units or composite currencies in which the principal of or any premium or interest on such Securities as to which such election is made shall be payable, the periods within which and the terms and conditions upon which such election is to be made and the amount so payable (or the manner in which such amount shall be determined);
(13) if other than the entire principal amount thereof, the portion of the principal amount of any Securities of the series which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to Section 5.02 or, if applicable, the portion of the principal amount of Securities of the series that is convertible in accordance with the provisions of this Indenture, or the method by which such portion shall be determined;
(14) if the principal amount payable at the Stated Maturity of any Securities of the series will not be determinable as of any one or more dates prior to the Stated Maturity, the amount which shall be deemed to be the principal amount of such Securities as of any such date for any purpose thereunder or hereunder, including the principal amount thereof which shall be due and payable upon any Maturity other than the Stated Maturity or which shall be deemed to be Outstanding as of any date prior to the Stated Maturity (or, in any such case, the manner in which such amount deemed to be the principal amount shall be determined);
(15) if the amount of payments of principal of or any premium or interest on any Securities of the series may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other indices), the manner in which such amounts shall be determined;
(16) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence of such events as may be specified;
(17) whether and under what circumstances, if any, the Company or the Guarantor will pay Additional Amounts as contemplated by Section 10.08 on the Securities of the series to any Holder in respect of any tax, assessment or governmental charge and, if so, whether and under what circumstances, if any, the Company or the Guarantor will have the option to redeem such Securities rather than pay such Additional Amounts (and the terms of any such option);
(18) if applicable, that the Securities of the series, shall be subject to either or both of Legal Defeasance or Covenant Defeasance as provided in Article Fourteen;
(19) if applicable, that any Securities of the series shall be issuable in whole or in part in the form of one or more Global Securities and, in such case, the respective Depositaries for such Global Securities, the form of any legend or legends which shall be borne by any such Global Security in addition to or in lieu of that set forth in Section 2.04 and any addition to, elimination of or other changes in the circumstances set forth in Clause (2) of the last paragraph of Section 3.05(a) in which any such Global Security may be exchanged in whole or in part for Securities registered, and any transfer of such Global Security in whole or in part may be registered, in the name or names of Persons other than the Depositary for such Global Security or a nominee thereof;
(20) any addition to, elimination of or other change in the Events of Default which applies to any Securities of the series and any change in the right of the Trustee or the requisite Holders of such Securities to declare the principal amount thereof due and payable pursuant to Section 5.02;
(21) any addition to, elimination of or other change in the covenants set forth in Article Ten or elsewhere herein which applies to Securities of the series;
(22) the terms and conditions, if any, pursuant to which the Securities are convertible or exchangeable for Common Shares or other securities; and
(23) any other terms of the series (in compliance with the provisions of this Indenture, including as permitted by Section 9.01).
All Securities of any one series shall be substantially identical, whether or not Securities of such series have been registered under the Securities Act or any state securities law, except as to denomination and except as may otherwise be provided in or pursuant to the Board Resolution referred to above and (subject to Section 3.03) set forth, or determined in the manner provided, in the Officer’s Certificate referred to above or in any such indenture supplemental hereto. All Securities of any one series need not be issued at one time and, unless otherwise provided or contemplated by this Section 3.01 with respect to a series of Securities, additional Securities of a series may be issued at the option of the Company, without the consent of any Holder, at any
time and from time to time; provided that, if the additional Securities of a series do not trade fungibly with the other Securities of such series, whether due to registration or absence of registration under the Securities Act, the initial interest period or otherwise, the additional Securities shall have a separate CUSIP number. To the extent any terms of a series of Securities established as provided or contemplated by this Section 3.01 shall be inconsistent with any provisions of this Indenture, such terms shall supersede the inconsistent provisions of this Indenture for all purposes related to such series of Securities.
If any of the terms of the series or any related Guarantee are established by action taken pursuant to a Board Resolution of the Company or the Guarantor, a copy of an appropriate record of such action shall be certified by the Secretary or an Assistant Secretary of the Company or the Guarantor, as applicable, and delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of the series.
SECTION 3.02. Denominations.
The Securities of each series shall be issuable only in registered form without coupons and only in such denominations as shall be specified as contemplated by Section 3.01. In the absence of any such specified denomination with respect to the Securities of any series, the Securities of such series shall be issuable in denominations of $1,000 and any integral multiple thereof.
SECTION 3.03. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by at least one Officer of the Company and any Guarantee to be endorsed on the Securities of a particular series shall be executed on behalf of the Guarantor by at least one Officer of the Guarantor. The signature of any of these Officers on the Securities and Guarantees may be manual or electronic.
Securities or Guarantees bearing the manual or electronic signatures of individuals who were at any time the proper Officers of the Company or the Guarantor shall bind the Company and the Guarantor, as applicable, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities, or the execution and delivery of such Guarantees, as applicable, or did not hold such offices at the date of issuance of such Securities, or the date of delivery of such Guarantees, as applicable.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company and, if applicable, endorsed with any Guarantees of the Securities of such series, to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities and an Officer’s Certificate delivered in accordance with Section 1.02, and the Trustee in accordance with the Company Order shall authenticate and deliver such Securities. If any Security shall be represented by a permanent Global Security, then, for purposes of this Section 3.03 and Section 3.04, the notation of a beneficial owner’s interest therein upon original issuance of such Security or upon exchange of a portion of a temporary Global Security shall be deemed to be delivered in connection with the original issuance of such beneficial owner’s interest in such permanent Global Security. If the form or terms of the Securities of the series have been established by or pursuant to one or more Board Resolutions as permitted by Sections 2.01 and 3.01, in
authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel stating in effect that,
(1) if the form of such Securities has been established by or pursuant to Board Resolution as permitted by Section 2.01, that such form has been established in conformity with the provisions of this Indenture;
(2) if the terms of such Securities have been established by or pursuant to a Board Resolution, that such terms have been established in conformity with the provisions of this Indenture;
(3) that such Securities, when authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(4) that such Guarantees have been duly executed and, when the Securities on which they shall have been endorsed shall have been authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute valid and legally binding obligations of the Guarantor enforceable in accordance with their terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles and provided that such Opinion of Counsel need not express any opinion on financial assistance or the consequences thereof.
If such form or terms have been so established, the Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.01 and of the preceding paragraph, if all Securities of a series are not to be originally issued at one time, including where the size of an Outstanding series of Securities is increased as contemplated in Section 3.01, it shall not be necessary to deliver the Officer’s Certificate otherwise required pursuant to Section 3.01 or the Company Order and Opinion of Counsel otherwise required pursuant to such preceding paragraph at or prior to the authentication of each Security of such series if such documents are delivered at or prior to the authentication upon original issuance of the first Security of such series to be issued.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security a certificate of authentication substantially in the form provided for herein executed by the Trustee by manual or electronic signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in Section 3.09, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of any Guarantee endorsed thereon on behalf of the Guarantor; if the Guarantee is thereafter attached pursuant to an order of the Guarantor, then after authentication of the corresponding Guarantee, the corresponding Guarantee shall be deemed delivered. The Trustee, in accordance with the Company Order and order of the applicable Guarantor, shall authenticate the Guarantee and deliver such Securities.
SECTION 3.04. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities which may have endorsed thereon Guarantees duly executed by the Guarantor, which are printed, lithographed, typewritten, reproduced or otherwise produced, in any authorized denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations as the Officers executing such Securities may determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will cause definitive Securities of that series, which may have endorsed thereon a Guarantee duly executed by the Guarantor, to be prepared without unreasonable delay. After the preparation of definitive Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series, having endorsed thereon a Guarantee duly executed by the Guarantor, upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor one or more definitive Securities of the same series, which may have endorsed thereon a Guarantee duly executed by the Guarantor, of any authorized denominations and of like tenor and aggregate principal amount. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of such series and tenor.
SECTION 3.05. Registration, Registration of Transfer and Exchange.
(a) The Company shall cause to be kept at the Corporate Trust Office of the Trustee a register (the register maintained in such office and in any other office or agency of the Company in a Place of Payment being herein sometimes collectively referred to as the “Security Register” although in no circumstances shall the register be kept in the United Kingdom) in which, subject to such reasonable regulations as it may prescribe, the Company shall provide for the registration of Securities and of transfers of Securities. The Trustee is hereby appointed “Security Registrar” for the purpose of registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of a series at the office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, which shall have endorsed thereon any Guarantees which were endorsed on the Securities so surrendered.
At the option of the Holder, Securities of any series may be exchanged for other Securities of the same series, of any authorized denominations and of like tenor and aggregate principal amount, upon surrender of the Securities to be exchanged at such office or agency. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive, and having endorsed thereon any Guarantees which were endorsed on the Securities so surrendered.
All Securities and any Guarantees endorsed thereon issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company and the Guarantor, as applicable, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company, the Guarantor and the Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Sections 3.04, Section 9.06 or 11.07 not involving any transfer.
If the Securities of any series (or of any series and specified tenor) are to be redeemed in part, the Company shall not be required (A) to issue, register the transfer of or exchange any Securities of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of the giving of a notice of redemption of any such Securities selected for redemption under Section 11.03 and ending at the close of business on the day of such mailing, (B) to register the transfer of or exchange any Security so selected for redemption in whole or in part, except the unredeemed portion of any Security being redeemed in part or (C) issue, register the transfer of or exchange any Security that has been surrendered for repayment at the option of the Holder, except the portion, if any, of the Security that is not to be repaid.
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, any indenture supplemental hereto, the Securities 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 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, any indenture supplemental hereto and the Securities, and to examine the same to determine substantial compliance as to form with the express requirements hereof.
The provisions of Clauses (1), (2), (3), (4) and (5) below shall apply only to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be registered in the name of the Depositary designated for such Global Security or a nominee thereof and delivered to such Depositary or a nominee thereof or custodian therefor, and each such Global Security shall constitute a single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, and subject to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, no Global Security may be exchanged in whole or in part for Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or a nominee thereof unless (A) such Depositary has notified the Company that it is unwilling or unable or no longer permitted under applicable law to continue as Depositary for such Global Security and the Company does not appoint another institution to act as Depositary within 90 days or (B) there shall have occurred and be continuing an Event of Default with respect to such Global Security and a Holder of the series of Securities represented by such Global Security requests registered Securities or (C) there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have been specified for this purpose as contemplated by Section 3.01.
(3) Subject to Clause (2) above and to such applicable provisions, if any, as may be specified as contemplated by Section 3.01, any exchange of a Global Security for other Securities may be made in whole or in part, and all Securities issued in exchange for a Global Security or any portion thereof shall be registered in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of transfer of, or in exchange for or in lieu of, a Global Security or any portion thereof, whether pursuant to this Section 3.05, Sections 3.04, 3.06, Section 9.06 or 11.07 or otherwise, shall be authenticated and delivered in the form of, and shall be, a Global Security, unless such Security is registered in the name of a Person other than the Depositary for such Global Security or a nominee thereof.
(5) Neither the Trustee nor any agent shall have any responsibility or liability for any actions taken or not taken by the Depositary.
SECTION 3.06. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security and (ii) such security or indemnity as may be required by them to save each of them, the Guarantor and any of their respective agents harmless, then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security, a new Security of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section 3.06, the Company may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section 3.06 in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation of the Company and the Guarantor, respectively, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series duly issued hereunder.
The provisions of this Section 3.06 are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.07. Payment of Interest; Interest Rights Preserved.
Except as otherwise provided as contemplated by Section 3.01 with respect to any series of Securities, interest on any Security which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest or, if no business is conducted by the Trustee at its Corporate Trust Office on such date, at 10:00 a.m., New York City time, on such date.
Any interest on any Security of any series which is payable, but is not punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on each Security of such series and the date of the proposed payment, and at the same time the Company shall deposit with the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities are payable (except as otherwise established as contemplated by Section 3.01 in respect of such Securities) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such deposit prior to the date of the proposed payment, such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this Clause (1) provided. Thereupon the Trustee shall fix a Special Record Date for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be given to each Holder of Securities of such series in the manner set forth in Section 1.06, not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor having been so given, such Defaulted Interest shall be paid to the Persons in whose names the Securities of such series (or their respective Predecessor Securities) are registered at the close of business on such Special Record Date and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the Securities of any series in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this Clause (2), such manner of payment shall be deemed practicable by the Trustee.
Except as may be provided in this Section 3.07 or as contemplated in Section 3.01 with respect to any Securities of a series, the Person to whom interest shall be payable on any Security that first becomes payable on a day that is not an Interest Payment Date shall be the Holder of such Security on the day such interest is paid.
Subject to the foregoing provisions of this Section 3.07, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried by such other Security.
SECTION 3.08. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Guarantor, the Trustee and any of their respective agents shall treat the Person in whose name such Security is registered as the owner of such Security for the purpose of receiving payment of principal of and any premium and (subject to Section 3.07) any interest on such Security and for all other purposes whatsoever, whether or not such Security be overdue, and none of the Company, the Guarantor, the Trustee and any of their respective agents shall be affected by notice to the contrary.
SECTION 3.09. Cancellation.
All Securities surrendered for payment, redemption, conversion, registration of transfer or exchange or for credit against any sinking fund payment or analogous obligation shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee and shall be promptly cancelled by it in accordance with its customary procedures. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company or the Guarantor may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled as provided in this Section 3.09, except as expressly permitted by this Indenture. All cancelled Securities held by the Trustee shall be disposed of as reasonably directed by a Company Order in accordance with the Trustee’s customary procedure; provided, however, that the Trustee shall not be required to destroy such cancelled Securities.
SECTION 3.10. Computation of Interest.
Except as otherwise specified as contemplated by Section 3.01 for Securities of any series, interest on the Securities of each series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers, and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice of redemption and that reliance may be placed only on the other identification numbers printed on the Securities. Any such redemption shall not be affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.01. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to Securities of any series specified in such Company Request (except as to any surviving rights of registration of transfer or exchange of any Security expressly provided for herein or in the terms of such Security), and the Trustee, upon receipt of Company Request and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
(1) either
(A) all Securities of a series theretofore authenticated and delivered (other than (i) Securities of such series which have been mutilated, destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06 and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company or the Guarantor and thereafter repaid to the Company or the Guarantor or discharged from such trust, as provided in Section 10.03) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series not theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company or the Guarantor, as the case may be, in the case of (i), (ii) or (iii) above, has deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose money in an amount sufficient to pay and discharge the entire indebtedness on such Securities of a series not theretofore delivered to the Trustee for cancellation (other than Securities of a series which have been destroyed, lost or stolen and which have been replaced or paid as provided in Section 3.06), for principal and any premium and interest to the date of such deposit (in the case of Securities which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may be; and
(2) the Company or the Guarantor, as the case may be, has paid or caused to be paid all other sums payable hereunder by the Company in respect of such Securities;
(3) no default or Event of Default then exists; and
(4) the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, with respect to Securities of any series pursuant to this Section 4.01, the obligations of the Company and the Guarantor to the Trustee under Section 6.07, the obligations of the Trustee to any Authenticating Agent under Section 6.14 and, if money shall have been deposited with the Trustee pursuant to sub-Clause (B) of Clause (1) of this Section 4.01 and the obligations of the Trustee under Section 4.02, in each case with respect to such Securities, shall survive.
SECTION 4.02. Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.01 shall be held in trust and applied by it, in accordance with the provisions of the Securities, the Guarantees and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons entitled thereto, of the principal and any premium and interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
REMEDIES
SECTION 5.01. Events of Default.
“Event of Default”, wherever used herein with respect to Securities of any series, means any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body), unless otherwise provided in an Officer’s Certificate of the Company or any indenture supplemental hereto creating such series of Securities pursuant to Section 3.01 of this Indenture:
(1) default of the Company for 5 days or more in the payment when due and payable, upon redemption, acceleration or otherwise, of principal of, or premium, if any, on the Securities of such series;
(2) default of the Company for 30 days or more in the payment when due of interest or any Additional Amounts payable on or with respect to Securities of such series;
(3) failure of the Company or the Guarantor to comply with their obligations set forth in Section 8.01 with respect to Securities of such series;
(4) failure of the Company to comply for 60 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of least 25% in principal amount of Securities of such series then Outstanding with the Company’s obligation to make a Change of Control Offer as described under Section 10.10 with respect to Securities of such series;
(5) failure of the Company to comply for 90 days after notice to the Company by the Trustee or to the Company and the Trustee by Holders of at least 25% in principal amount of the Securities of such series then Outstanding with any of its other obligations, covenants or agreements contained in this Indenture or Securities of such series;
(6) the Indebtedness of the Company or the Guarantor or the Indebtedness of a Material Subsidiary is not paid within any applicable grace period after final maturity or is accelerated by the holders thereof because of a default and the total amount of such Indebtedness unpaid or accelerated exceeds €250 million; provided, however, that it shall be deemed not to be an Event of Default if such Indebtedness is paid or otherwise acquired or retired (or for which
such failure to pay or acceleration is waived or rescinded) within 30 Business Days after such failure to pay or such acceleration;
(7) the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company or the Guarantor as bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or composition of or in respect of the Company or the Guarantor under any applicable law, or appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of their property, or ordering the winding up or liquidation of their 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;
(8) the commencement by the Company or the Guarantor of a voluntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or the Guarantor in an involuntary case or proceeding under any applicable bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or the Guarantor or of any substantial part of their property, or the making by it of an assignment for the benefit of creditors, or the admission by the Company 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 Company or the Guarantor in furtherance of any such action;
(9) the Company ceases to be Controlled directly or indirectly by the Guarantor, for which purpose the Guarantor shall be deemed to Control the Company only if the Guarantor directly or indirectly, through one or more companies Controlled by it within the meaning of this definition, (a) owns more than 50% of the voting share capital of the Company; or (b) has power to appoint or remove more than 50% of the board of directors (or other similar senior supervisory body) of the Company;
(10) the Guarantee shall be held in any judicial proceeding (in each case being a judgment or order from which no further appeal or judicial review is permissible under applicable law) to be unenforceable or invalid or shall cease for any reason to be in full force and effect or the Guarantor shall deny or disaffirm its obligations under the Guarantee, as the case may be; or
(11) any other Event of Default provided with respect to Securities of such series.
SECTION 5.02. Acceleration of Maturity; Rescission and Annulment; Waiver of Existing Default.
If any Event of Default (other than of a type specified in Section 5.01(7) or Section 5.01(8) with respect to the Company or the Guarantor occurs and is continuing under this Indenture with respect to the Securities of any series, the Trustee or the holders of at least 25% in aggregate principal amount of the Securities of that series then Outstanding may declare the principal, premium, if any, interest and any other monetary obligations on all the then Outstanding Securities of that series to be due and payable immediately. Upon the effectiveness of such declaration, such principal and interest shall be due and payable immediately. Notwithstanding the foregoing, in the case of an Event of Default arising under Section 5.01(7) or Section 5.01(8), all Outstanding Securities of that series will become due and payable without further action or notice. The Trustee may withhold from the Holders notice of any continuing default, except a default relating to the payment of principal, premium, if any, or interest, if and so long as the board of directors, the executive committee or a trust committee of directors or Responsible Officers of the Trustee in good faith determines that withholding notice is in the Holders’ interest.
The Holders of a majority in aggregate principal amount of the then Outstanding Securities of that series by notice to the Trustee may, on behalf of the Holders of all of the Securities of that series, waive any existing default with respect to the Securities of that series and its consequences thereof under this Indenture (except a continuing default in the payment of interest on, premium, if any, or the principal of any Securities of that series held by a non-consenting Holder) and rescind any acceleration with respect to the Securities of that series and its consequences (except if such rescission would conflict with any judgment of a court of competent jurisdiction). In the event of any Event of Default specified in Section 5.01(6), such Event of Default and all consequences thereof (excluding any resulting payment default, other than as a result of acceleration of the applicable series of Securities) shall be annulled, waived and rescinded, automatically and without any action by the Trustee or the Holders, if within 30 days after such Event of Default arose: (i) the indebtedness that is the basis for such Event of Default has been discharged; (ii) Holders thereof have rescinded or waived the acceleration, notice or action (as the case may be) giving rise to such Event of Default; or (iii) the default that is the basis for such Event of Default has been cured.
SECTION 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on or Additional Amounts payable in respect of any Security when such interest or Additional Amounts becomes due and payable and such default continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if any, on) any Security at the Maturity thereof and such default continues for a period of 5 days,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the whole amount then due and payable on such Securities for principal and any premium and interest and, to the extent that payment of such interest shall be legally enforceable, interest on any overdue principal and premium and on any overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 5.04. Trustee May File Proofs of Claim.
In case of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or any other judicial proceeding relative to the Company, the Guarantor, their respective property or creditors, the Trustee (irrespective of whether the principal of the 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 on the Company or the Guarantor for the payment of overdue principal or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise, (1) to file and prove a claim for the whole amount of principal and premium, if any, and interest owning and unpaid in respect of the Securities 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 the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the Holders allowed in such judicial proceeding, and (2) to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same; and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Holder to make such payments to the Trustee and, in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due it for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 6.07.
No provision of this Indenture shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Holder in any such proceeding; provided, however, that the Trustee may (but shall be under no obligation to unless directed in writing by the Holders), on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ or other similar committee.
SECTION 5.05. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture, the Securities or any Guarantee may be prosecuted and enforced by the Trustee without the possession of any of the Securities or any Guarantee or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities in respect of which such judgment has been recovered.
SECTION 5.06. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article Five shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution of such money on account of principal or any premium or interest, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee, including its agents or attorneys, in connection with the Securities under this Indenture;
SECOND: To the payment of the amounts then due and unpaid for principal of and any premium and interest and any Additional Amounts payable on the Securities in respect of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according to the amounts due and payable on such Securities for principal and any premium and interest, respectively, and Additional Amounts, respectively; and
THIRD: To the payment of the remainder, if any, to the Company, its successors or assigns, or to whomever may be so lawfully entitled to receive the same, or as a court of competent jurisdiction may direct.
SECTION 5.07. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture, the Securities or any Guarantee, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given the Trustee notice that an Event of Default is continuing;
(2) Holders of at least 25% in aggregate principal amount of the then Outstanding Securities of that series have requested the Trustee to pursue the remedy;
(3) Holders of the Securities of that series have offered the Trustee security and/or indemnity satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee has not complied with such request within 60 days after the receipt thereof and the offer of security or indemnity; and
(5) and Holders of a majority in aggregate principal amount of the then Outstanding Securities of that series have not given the Trustee a direction inconsistent with such request within such 60-day period;
it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all of such Holders (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not such actions or forbearances are unduly prejudicial to such Holders).
SECTION 5.08. Unconditional Right of Holders to Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and any premium and (subject to Section 3.07) interest on such Security on the respective Stated Maturities expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 5.09. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case, subject to any determination in such proceeding, the Company, the Guarantor, the Trustee and the Holders shall be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding had been instituted.
SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last paragraph of Section 3.06, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article Five or by law to the Trustee or to the Holders may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the Holders, as the case may be.
SECTION 5.12. Control by Holders.
The Holders of a majority in principal amount of the Outstanding Securities of each affected series shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect to the Securities of such series; provided that:
(1) The Trustee may refuse to follow any such direction that conflicts with any rule of law or with this Indenture or that the Trustee determines is unduly prejudicial to the rights of other Holders of the affected series or would involve the Trustee in personal liability; and
(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of each affected series may on behalf of the Holders of all the Securities of such series waive any past default hereunder with respect to such series and its consequences, except a default:
(1) in the payment of the principal of or any premium or interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot be modified or amended without the consent of the Holder of each Outstanding Security of such affected series.
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay the costs of such suit, and may assess costs against any such party litigant, in the manner and to the extent provided in the Trust Indenture Act; provided that neither this Section 5.14 nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking or to make such an assessment in any suit instituted by the Trustee or to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of any series, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium, if any) or interest on any Security on or after the Stated Maturity or Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
SECTION 5.15. Waiver of Usury, Stay or Extension Laws.
Each of the Company and the Guarantor covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner whatsoever claim or take the benefit or advantage of, any usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company and the Guarantor (to the extent that each may lawfully do so) hereby each expressly waives all benefit or advantage of any such law and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.01. Certain Duties and Responsibilities.
(1) If an Event of Default has occurred and is continuing, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
(2) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by the express provisions of this Indenture, and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no implied covenants or obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee and conforming to the requirements of this Indenture. However, in the case of any such certificates or opinions which by any provision hereof are specifically required to be furnished to the Trustee, the Trustee shall examine the certificates and opinions 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).
(3) The Trustee may not be relieved from liabilities for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this paragraph does not limit the effect of paragraph (2) of this Section 6.01;
(ii) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved in a court of competent jurisdiction that the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Section 5.12.
(4) Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (1), (2) and (3) of this Section 6.01.
(5) None of the provisions of this Indenture shall require the Trustee to expend or risk its own funds or otherwise to incur any liability, financial or otherwise, in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to it against such risk or liability is not assured to it.
(6) The Trustee shall not be liable for interest on any money received by it except as the Trustee may agree in writing with the Company or the Guarantor. Money held in trust by the Trustee need not be segregated from other funds except to the extent required by law.
SECTION 6.02. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any series and written notice of such default is provided to a Responsible Officer of the Trustee, the Trustee shall give the Holders of Securities of such series notice of such default within 90 days after such written notice is received by such Responsible Officer; provided, however, that in the case of any default of the character specified in Section 5.01(8) with respect to Securities of such series, no such notice to Holders shall be given until at least 30 days after the occurrence thereof. For the purpose of this Section 6.02, the term “default” means any event which is, or after notice or lapse of time or both would become, an Event of Default with respect to Securities of such series.
SECTION 6.03. Certain Rights of Trustee.
Subject to the provisions of Section 6.01:
(1) The Trustee may conclusively rely upon any document believed by it to be genuine and to have been signed or presented by the proper Person. The Trustee need not investigate any fact or matter stated in the document, but the Trustee in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company or the Guarantor, personally or by agent or attorney, at the sole cost of the Company or the Guarantor, as the case may be, and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation.
(2) Before the Trustee acts or refrains from acting, it may require an Officer’s Certificate or an Opinion of Counsel or both subject to the other provisions of this Indenture. The Trustee shall not be liable for any action it takes or omits to take in good faith in reliance on such Officer’s Certificate or Opinion of Counsel. The Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon
(3) The Trustee may act through its attorneys and agents and shall not be responsible for the misconduct or negligence of any agent or attorney appointed with due care.
(4) The Trustee shall not be liable for any action it takes or omits to take in good faith that it believes to be authorized or within the rights or powers conferred upon it by this Indenture.
(5) Unless otherwise specifically provided in this Indenture, any demand, request, direction or notice from the Company or the Guarantor shall be sufficient if signed by an Officer of the Company or the Guarantor, as the case may be. The Trustee shall not have any duty to inquire as to the performance of the Company’s or the Guarantor’s covenants herein.
(6) The Trustee shall not be under any obligation to exercise any of its rights or powers under this Indenture at the request or direction of any of the Holders of the Securities unless it receives indemnity and/or security satisfactory to it against any loss, liability or expense which might be incurred by it in compliance with such request or direction.
(7) In no event shall the Trustee be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action.
(8) The rights, privileges, protections, immunities and benefits given to the Trustee, including its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and by each agent, custodian and other Person employed to act hereunder.
(9) The Trustee shall not be required to give any bond or surety in respect of the performance of its powers or duties.
(10) 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 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.
(11) The Trustee may request that the Company or the Guarantor deliver an Officer’s Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Indenture, which Officer’s Certificate may be signed by any Person authorized to sign an Officer’s Certificate, including any Person specified as so authorized in any such certificate previously delivered and not superseded.
(12) The permissive rights of the Trustee enumerated herein shall not be construed as duties.
(13) The Trustee shall not be deemed to have notice of any Default or Event of Default unless written notice of any event which is in fact a Default or Event of Default is received by a Responsible Officer of the Trustee at the Corporate Trust Office, and such notice references the Securities and this Indenture.
SECTION 6.04. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities and the Guarantees, except the Trustee’s certificates of authentication, shall be taken as the statements of the Company and the Guarantor, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture, the Securities or the Guarantees. Neither the Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
SECTION 6.05. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other agent of the Company or the Guarantor, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 6.08 and 6.13, may otherwise deal with the Company or the Guarantor with the same rights it would have if it were not Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other agent.
SECTION 6.06. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for interest on any money received by it hereunder except as otherwise agreed in writing with the Company.
SECTION 6.07. Compensation and Reimbursement.
(1) Each of the Company and the Guarantor agrees (i) to pay to the Trustee from time to time such compensation as the Company, the Guarantor and the Trustee shall, from time to time, agree in writing for all services rendered by it hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust); (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its negligence or willful misconduct; and (iii) to jointly and severally indemnify the Trustee for, and to hold it harmless against, any loss, liability or expense (including, but not limited to, the reasonable compensation and the expenses and disbursements of its agents and counsel, and taxes levied other than taxes (including income, capital, franchise taxes) levied because of a connection between the Trustee and the jurisdiction levying the tax other than a connection arising solely as a result of the Trustee performing its obligations under
this Indenture)) incurred without negligence or willful misconduct on its part, arising out of or in connection with the acceptance or administration of this Indenture and its duties under this Indenture and the Securities, including the costs and expenses of defending itself against any claim or liability in connection with the exercise or performance of any of its powers or duties under the Indenture and the Securities.
(2) To secure the Company’s and the Guarantor’s payment obligations in this Section 6.07, the Trustee will have a lien prior to the Securities on all money or property held or collected by the Trustee, in its capacity as Trustee, except money or property held in trust to pay principal of, and interest on particular Securities.
(3) The obligations of the Company and the Guarantor under this Section 6.07 shall survive the payment of the Securities, the satisfaction and discharge of the Indenture and the resignation or removal of the Trustee.
(4) When the Trustee incurs expenses or renders services in connection with an Event of Default specified in Section 5.01(7) or Section 5.01(8), 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 bankruptcy, insolvency or other similar law.
SECTION 6.08. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either eliminate such interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust Indenture Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under this Indenture with respect to Securities of more than one series.
SECTION 6.09. Corporate Trustee Required; Eligibility.
There shall at all times be one (and only one) Trustee hereunder with respect to the Securities of each series, which may be Trustee hereunder for Securities of one or more other series. Each Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and is a corporation organized and doing business under the laws of the United States of America or of any state thereof that is authorized under such laws to exercise corporate trustee power. If any such Person publishes reports of condition at least annually, pursuant to law or to the requirements of its supervising or examining authority, then for the purposes of this Section 6.09 and to the extent permitted by the Trust Indenture Act, the combined capital and surplus of such Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee with respect to the Securities of any series shall cease to be eligible in accordance with the provisions of this Section 6.09, it shall resign immediately in the manner and with the effect hereinafter specified in this Article Six.
SECTION 6.10. Resignation and Removal; Appointment of Successor.
No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article Six shall become effective until the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 6.11.
The Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company at least 30 days prior to such resignation. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, with written notice of such action delivered to the Trustee and to the Company and the Guarantor 30 days prior to the Trustee’s removal.
If at any time:
(1) the Trustee shall fail to comply with Section 6.08 after written request therefor by the Company and the Guarantor or by any Holder who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.09 and shall fail to resign after written request therefor by the Company and the Guarantor or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (A) the Company and the Guarantor by or pursuant to a Board Resolution may remove the Trustee with respect to all Securities or the Securities of any series upon providing 30 days’ written notice to the Trustee, or (B) subject to Section 5.14, any Holder who has been a bona fide Holder of a Security of any 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 with respect to all Securities of such series and the appointment of a successor Trustee or Trustees with respect thereto.
If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause, with respect to the Securities of one or more series, the Company and the Guarantor, by a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable requirements of Section 6.11. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series delivered to the Company, the Guarantor and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the applicable requirements of Section 6.11, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company and the Guarantor. If no successor Trustee with respect to the Securities of any series shall have been so appointed by the Company and the Guarantor or the Holders and accepted appointment in the manner required by Section 6.11, subject to Section 5.14, any Holder who has been a bona fide Holder of a Security of such series for at least six months may, on behalf of himself and all others similarly situated, or the retiring Trustee, at the expense of the Company, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
The Company shall give written notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each appointment of a successor Trustee with respect to the Securities of any series to all Holders of Securities of such series in the manner provided in Section 1.06. Each notice of such appointment shall include the name of the successor Trustee with respect to the Securities of such series and the address of its Corporate Trust Office. Notices of resignation, removal and appointment may be combined into a single notice.
SECTION 6.11. Acceptance of Appointment by Successor.
In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the Guarantor and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on the request of the Company, the Guarantor or the successor Trustee, such retiring Trustee shall, upon payment of its outstanding fees (including, but not limited to, reasonable attorney’s fees and expenses), execute and deliver an instrument (in form and substance reasonably satisfactory to the parties executing the same) transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder.
In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto (in form and substance reasonably satisfactory to the parties executing the same) wherein each successor Trustee shall accept such appointment and which (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee and (3) shall
add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on the request of the Company, the Guarantor or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the appointment of such successor Trustee relates.
Upon request of any such successor Trustee, the Company shall execute any and all instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in the first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and eligible under this Article Six.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be otherwise qualified and eligible under this Article Six, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities shall have been authenticated, but not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company or the Guarantor.
If and when the Trustee shall be or become a creditor of the Company or the Guarantor or any other obligor upon the Securities, the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company or the Guarantor or any such other obligor.
SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect to one or more series of Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange, registration of transfer, or partial redemption thereof or pursuant to Section 3.06, and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the Company and the Guarantor and shall at all times be a Person organized and doing business under the laws of the United States of America, any State thereof or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $50,000,000 and subject to supervision or examination by U.S. federal or state authority. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section 6.14, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time an Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section 6.14.
Any Person into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any Person resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any Person succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent, provided such Person shall be otherwise eligible under this Section 6.14, without the execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee for such series and to the Company and the Guarantor. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and to the Company and the Guarantor. Upon receiving such a notice of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section 6.14, the Trustee for such series may appoint a successor Authenticating Agent which shall be acceptable to the Company and shall give notice of such appointment in the manner provided in Section 1.06 to all Holders of Securities of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register. Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No successor Authenticating Agent shall be appointed unless eligible under the provisions of this Section 6.14.
The Company agrees to pay to each Authenticating Agent from time to time such reasonable compensation for its services under this Section 6.14 as the Company and the Authenticating Agent shall from time to time agree in writing.
If an appointment with respect to one or more series is made pursuant to this Section 6.14, the Securities of such series may have endorsed thereon, in addition to the Trustee’s certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON
As Trustee
By: [______________________________]
As Authenticating Agent
By: [______________________________]
Authorized Signatory
ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.01. Company and Guarantor to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(1) semi-annually, not later than 15 days after each Regular Record Date for Securities of each series at the time Outstanding, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Securities of each series as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of similar form and content as of a date not more than 15 days prior to the time such list is furnished,
excluding from any such list names and addresses received by the Trustee in its capacity as Security Registrar. For so long as the Trustee acts as Security Registrar, the Company’s obligation to deliver reports shall conclusively be deemed satisfied.
SECTION 7.02. Preservation of Information; Communications to Holders.
The Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of Holders contained in the most recent list furnished to the Trustee as provided in Section 7.01 and the names and addresses of Holders received by the Trustee in its capacity as Security Registrar. The Trustee shall otherwise comply with Trust Indenture Act Section 312(a).
If the Trustee is not the Security Registrar, the Company shall furnish to the Trustee at least two Business Days before each interest payment date and at such other times as the Trustee may request in writing, a list in such form and as of such date as the Trustee may reasonably require of the names and addresses of the Holders of Securities and the Company shall otherwise comply with Trust Indenture Act Section 312(a).
The Trustee may destroy any list furnished to it as provided in Section 7.01 upon receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to their rights under this Indenture or under the Securities, and the corresponding rights and privileges of the Trustee, shall be as provided by the Trust Indenture Act.
Every Holder of Securities, by receiving and holding the same, agrees with the Company, the Guarantor and the Trustee that none of the Company, the Guarantor, the Trustee or any agent of any of them shall be held accountable by reason of any disclosure of information as to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 7.03. Reports by Trustee.
The Trustee shall transmit to Holders such reports concerning the Trustee and its actions under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the manner provided pursuant thereto. Reports so required to be transmitted at stated intervals of not more than 12 months shall be transmitted within 60 days after April 15 of each year commencing with the first April 15 after the first date of issuance of Securities.
A copy of each such report shall, at the time of such transmission to Holders, be filed by the Trustee with each stock exchange upon which any Securities are listed, with the Commission and with the Company and the Guarantor. The Company or the Guarantor will notify the Trustee when any Securities are listed on any stock exchange or of any delisting thereof.
SECTION 7.04. Reports by the Guarantor.
The Guarantor shall, if the Guarantor is subject to the reporting requirements of either Section 13 or 15(d) of the Exchange Act, either (a) file with the Commission or (b) deliver to the Trustee such annual reports and information, documents and other reports as are specified in Sections 13 and 15(d) of the Exchange Act and applicable to foreign private issuers subject to such Sections within the time periods prescribed for foreign private issuers.
If at any time, the Guarantor is not subject to the periodic reporting requirements of the Exchange Act but continues to be required to file periodic reports with the Netherlands Authority for Financial Markets (Autoriteit Financiële Markten) pursuant to Section 2:394 of the Dutch Civil Code, in conjunction with the Dutch Financial Supervision Act (Wet op het financieel toezicht) or with any other regulatory authority of a member state of the European Union or the United Kingdom pursuant to laws and regulations then applicable to the Guarantor, the Guarantor shall either (a) file with such regulatory authority or (b) deliver to the Trustee such annual reports and information, documents and other reports as are required to be filed by the Guarantor under such laws and regulations.
Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive notice or knowledge of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants pursuant to Article Ten (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates).
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALE OF ASSETS; SUBSTITUTION
SECTION 8.01. Company and Guarantor May Consolidate, Etc., Only on Certain Terms.
The Company and the Guarantor are generally permitted to consolidate or amalgamate with or merge with or into, or sell, transfer, or lease or convey all or substantially all of their properties and assets to another Person. However, neither the Company nor the Guarantor shall consolidate or amalgamate with or merge into any other Person, or convey, transfer or lease all or substantially all of its assets to any other Person, unless:
(1) When the Company or the Guarantor merges or consolidates out of existence or sells or leases its respective properties and assets substantially as an entirety, the other company or firm must be organized under the laws of the United States of America, any state thereof, the District of Columbia, or any territory thereof, the U.K., Canada or any province thereof, Japan, Switzerland, or any member state of the European Union or any political subdivision thereof;
(2) The Person the Company or the Guarantor merges with or into, or consolidates out of existence with, or sells or leases its properties or assets substantially as an entirety to, shall by an indenture supplemental to the Indenture, executed and delivered to the Trustee, (i) (a) in the case of the Guarantor, expressly guarantee, or (b) in the case of the Company, expressly assume, the due and punctual payment of the principal of and any premium and interest on all Securities, and (ii) expressly assume the performance or observance of every covenant of the Indenture on the part of the Company or the Guarantor, as the case may be, to be performed or observed;
(3) The consolidation, merger or sale of assets must not cause a default on the Securities, and the Company and the Guarantor must not already be in default (unless the merger or other transaction would cure the default). For purposes of this no-default test, a default would include an Event of Default that has occurred and not been cured. A default for this purpose would also include any event that would be an Event of Default if the requirements for giving the Company default notice or the Company’s default having to exist for a specific period of time were disregarded.
This Section 8.01 shall not restrict any transaction other than a consolidation, amalgamation, merger, conveyance or lease as specified above.
SECTION 8.02. Successor Substituted.
If the Company or the Guarantor amalgamates or consolidates with or merges with or into any other Person, or sells, transfers, or leases or conveys all or substantially all of their respective properties and assets to another Person, in each case pursuant to Section 8.01, the successor Person in any such transaction shall succeed to, and be substituted for, and may exercise every right and power of, the Company or the Guarantor, as the case may be, under this Indenture and the Securities, and the Company, as the predecessor Person, except in the case of a lease, shall be released from all of its obligations under this Indenture and the Securities.
SECTION 8.03. Substitution by Guarantor.
The Company may at any time, without the consent of the Holders of the Securities of the relevant series, substitute for itself as principal debtor under the Securities the Guarantor as issuer, provided that no Event of Default has occurred in respect of the Securities of that series and no payment in respect of such Securities is at the relevant time overdue. The substitution shall be made by an indenture supplemental to this Indenture and may take place only if:
(1) [the Guarantor agrees, in the indenture supplemental to this Indenture, to indemnify each holder of the Securities of the relevant series against (A) any tax, duty, assessment or governmental charge which is imposed on such holder by (or by any subdivision or authority having power to tax in or of) the United States of America, the Netherlands or the United Kingdom with respect to any Security that would not have been so imposed had the substitution not been made and (B) any cost or expense relating to the substitution;]
(2) all the provisions set forth in this Indenture with respect to the Company shall apply to the Securities of that series following the substitution as if such Securities were originally issued by the Guarantor;
(3) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) to ensure that (A) the indenture supplemental to this Indenture and the Securities of the relevant series, and such other documentation as may be necessary to be executed by the Guarantor to effect the substitution represent valid, legally binding and enforceable obligations of the Guarantor and (B) the indenture supplemental to this Indenture and such other documentation as may be necessary to be executed by the Company to effect the substitution represent valid, legally binding and enforceable obligations of the Company have been taken, fulfilled and done and are in full force and effect (such documents in Clause (A) and Clause (B) together, the “Substitution by Guarantor Documents”);
(4) legal opinions, subject to customary assumptions and qualifications, addressed to the Trustee shall have been delivered to it from lawyers or firms of lawyers with leading securities practices in the Netherlands as to the due authorization, execution and delivery of the Substitution by Guarantor Documents by the Guarantor and in the United States of America as to the validity, legally binding effect and enforceability of the Substitution by Guarantor Documents, as well as an Officer’s Certificate as to compliance with the provisions set forth in this Section 8.03; and
(5) the Company shall have given at least 14 days’ prior notice of such substitution to the Trustee and the Holders of the Securities of the relevant series.
Upon the execution of the indenture supplemental to this Indenture by all parties thereto and the satisfaction of the other conditions set out herein and the indenture supplemental to this Indenture, (i) the Guarantor shall succeed to and be substituted for the Company under the Securities of the relevant series and the Indenture with the same effect as if it had been named as the Company therein, and (ii) the Guarantee with respect to the Securities of the relevant series shall terminate without any requirement that any action be taken by the Company, the Guarantor or the Trustee. For the avoidance of doubt, following substitution in accordance herewith, the Company shall cease to be the issuer under the Securities of that series and shall be relieved of all of its obligations and covenants under this Indenture and the Securities of such series as the issuer of such Securities, and any such substitution shall not, of itself, trigger an Event of Default or constitute an event set forth in Section 8.01.
Following substitution, references in Article Five to obligations under the Securities shall be deemed to include obligations under the indenture supplemental to this Indenture.
SECTION 8.04 Substitution by Treasury Subsidiary.
The Company, or any previous substituted company, may at any time, without the consent of the Holders of the Securities of the relevant series, substitute for itself as principal debtor under the Securities of that series any company (the “Substitute”) that is a Treasury Subsidiary, provided that no Event of Default has occurred in respect of the Securities of that series and no payment in respect of such Securities is at the relevant time overdue. The substitution shall be made by an indenture supplemental to this Indenture and may take place only if:
(1)[the Substitute, failing which, the Guarantor, agrees in the indenture supplemental to this Indenture to indemnify each Holder of the Securities of the relevant series against (A) any tax, duty, assessment or governmental charge that is imposed on such holder by (or by any subdivision or authority having the power to tax in or of) the jurisdiction of the country of the Substitute’s residence for tax purposes and, if different, of its incorporation with respect to any Security that would not have been so imposed had the substitution not been made, and (B) any cost or expense relating to the substitution;]
(2)all the provisions set forth in the Indenture with respect to the Company and the Guarantor shall apply to the Securities of the relevant series following the substitution as if such Securities were originally issued by the Substitute and guaranteed by the Guarantor;
(3)the obligations of the Substitute under the indenture supplemental to this Indenture and the Securities of the relevant series shall be irrevocably and unconditionally guaranteed by the Guarantor (on substantially the same terms as the Guarantees) by means of the indenture supplemental to this Indenture;
(4)(A) all actions, conditions and things required to be taken, fulfilled and done (including the obtaining of any necessary consents) to ensure that the indenture supplemental to
this Indenture, the Securities of the relevant series and such other documentation as may be necessary to be executed by the Substitute and the original issuer to effect the substitution represent valid, legally binding and enforceable obligations of the Substitute and, (B) the indenture supplemental to this Indenture and such other documentation as may be necessary to be executed by the Guarantor to effect the substitution represent valid, legally binding and enforceable obligations of the Guarantor have been taken, fulfilled and done and are in full force and effect (such documents in Clause (A) and Clause (B) together, the “Substitution by Treasury Subsidiary Documents”);
(5)in order to effect the substitution, the Substitute shall have become party to the Indenture, with any appropriate consequential amendments, as if it had been an original party to it;
(6)legal opinions, subject to customary assumptions and qualifications, addressed to the Trustee shall have been delivered to it from lawyers or firms of lawyers with leading securities practices in the Netherlands as to the due authorization, execution and delivery of the Substitution by Treasury Subsidiary Documents by the Guarantor, in the jurisdiction of incorporation of the Substitute as to the due authorization, execution and delivery of the Substitution by Treasury Subsidiary Documents by the Substitute and in the United States of America as to the validity, legally binding effect and enforceability of the Substitution by Treasury Subsidiary Documents, as well as an Officer’s Certificate as to compliance with the provisions set forth in this Section 8.04; and
(7) the Company shall have given at least 14 days’ prior notice of such substitution to the Trustee and the Holders of the Securities of the relevant series.
Upon the execution of the indenture supplemental to this Indenture by all parties thereto and the satisfaction of the other conditions set out herein and the indenture supplemental to this Indenture, the Substitute shall succeed to and be substituted for the Company under the Securities of the relevant series and the Indenture with the same effect as if it had been named as the issuer herein and the Guarantor shall continue to be the Guarantor of the Securities that series. For the avoidance of doubt, following substitution in accordance herewith, the original issuer shall cease to be the issuer under the Securities of the relevant series and any such substitution shall not, of itself, trigger an Event of Default or constitute an event set forth in Section 8.01.
Following substitution, references in Article Five to obligations under the Securities of the relevant series shall be deemed to include obligations under the indenture supplemental to this Indenture, and where the indenture supplemental to this Indenture contains a guarantee, the events listed in Article Five shall be deemed to include that guarantee not being (or being claimed by the Guarantor not to be) in full force and effect.
SECTION 8.05. Holders’ Consent Regarding Substitution.
By acquiring an interest in any Securities, each Holder or beneficial owner of the Securities is deemed to irrevocably: (i) consent in advance to the substitution of the Company, the Guarantor or any Treasury Subsidiary, as the case may be, as issuer by the Guarantor or a Treasury Subsidiary, as the case may be, to the extent carried out pursuant to, and in compliance
with the Indenture; (ii) following any such substitution, consent to the release of the Company, or any Treasury Subsidiary, as the case may be, which has been so substituted as issuer from any and all obligations in respect of the Securities and any relevant agreements (other than as set out in any agreements relating to the relevant substitution) and are deemed to have accepted such substitution and the consequences thereof. Any substitution shall be effected without cost or charge to the holders of Securities.
In the event the jurisdiction of incorporation of the substitute obligor is not the United States of America or the Netherlands, as the case may be, such substitute obligor will also agree to be bound to the obligations set forth in Section 10.08 but shall substitute the successor’s or substitute obligor’s jurisdiction of incorporation for the United States of America or the Netherlands, as the case may be.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.01. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company (when authorized by a Board Resolution), the Guarantor and the Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to cure any ambiguity, omission, mistake, defect or inconsistency that does not materially adversely affect the rights of the Holders;
(2) to provide for uncertificated Securities in addition to or in place of certificated Securities;
(3) to comply with Article Eight;
(4) to provide for the assumption of the Company’s or the Guarantor’s obligations to the Holders;
(5) to make any change that would provide any additional rights or benefits to the Holders or that, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate, does not materially adversely affect the legal rights under this Indenture of any such Holder;
(6) to add covenants for the benefit of the Holders or to surrender any right or power conferred upon the Company or the Guarantor;
(7) to comply with requirement of the Commission in order to effect or maintain the qualification of this Indenture under the Trust Indenture Act;
(8) to evidence and provide for a successor to the Company or the Guarantor and the assumption by any such successor of the covenants under this Indenture and the Securities;
(9) to conform the text of this Indenture, any Guarantee or the forms or terms such series of Securities issued hereunder to any provision of the “Description of Notes and Guarantees” section of the relevant offering document of such series to the extent that such provision in such “Description of Notes and Guarantees” was intended to be a verbatim recitation of a provision of this Indenture, as provided in an Officer’s Certificate;
(10) to secure the Securities;
(11) to establish the form or terms of Securities of any series or any associated Guarantees as permitted by Sections 2.01 and 3.01;
(12) 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 6.11;
(13) to add to, change or eliminate any of the provisions of this Indenture to such extent as shall be necessary to comply with the rules or regulations on any securities exchange or automated quotation system on which any of the Securities may be listed or traded;
(14) to eliminate any conflict between the terms hereof and the Trust Indenture Act or to make any other provisions with respect to matters or questions arising under this Indenture; provided that such action pursuant to this Clause (14) shall not adversely affect the interests of the Holders of Securities of any series in any material respect, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate; or
(15) to supplement any of the provisions of the Indenture to such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Articles Four and Fourteen; provided that any such action shall not adversely affect the interests of the Holders of such series or any other series of Securities in any material respect, as determined in good faith by the Company and conclusively evidenced by an Officer’s Certificate.
SECTION 9.02. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of any series affected by such supplemental indenture, by Act of said Holders delivered to the Company, the Guarantor and the Trustee, the Company, when authorized by a Board Resolution, the Guarantor and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture; provided, however, that no such supplemental indenture shall, without the consent of the Holder of each Outstanding Security affected thereby,
(1) reduce the principal amount of or change the fixed final maturity of any series of Securities or alter or waive the provisions with respect to the redemption of such series of Securities;
(2) reduce the rate of or change the time for payment of interest on any series of Securities;
(3) waive a default in the payment of principal of or premium, if any, or interest on any series of Securities (except a rescission of acceleration of the Securities of such series by the Holders of at least a majority in aggregate principal amount of such series of Securities and a waiver of the payment default that resulted from such acceleration) or in respect of a covenant or provision contained in this Indenture which cannot be amended or modified without the consent of all affected Holders;
(4) make any Security payable in money other than that stated therein;
(5) make any change in the provisions of this Indenture relating to waivers of past defaults or the rights of Holders to receive payments of principal of or premium, if any, or interest on the Securities;
(6) make any change in these amendment and waiver provisions;
(7) release the Guarantor from any of its obligations under its Guarantee or this Indenture, except in accordance with the terms of this Indenture;
(8) impair the right of any Holder to receive payment of principal of, or interest on such Holder’s Securities on or after the due dates therefor or to institute suit for the enforcement of any payment on or with respect to such Holder’s Securities; and
(9) make any change to the ranking of a series of Securities or the Guarantee that would materially adversely affect the rights of Holders of the Securities of such series.
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 the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section 9.02 to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
The Company may, but shall not be obligated to, fix a record date for the purpose of determining the Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture, whether or not such Holders remain Holders after such record date; provided that, unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90
days after such record date, any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
SECTION 9.03. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article Nine or the modifications thereby of the trusts created by this Indenture, the Trustee shall receive, and (subject to Section 6.01) shall be fully protected in relying upon, an Opinion of Counsel and an Officer’s Certificate 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 Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 9.04. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article Nine, this Indenture shall be modified in accordance therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.05. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the Trust Indenture Act.
Whenever this Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made a part of this Indenture.
All terms used in this Indenture that are defined by the Trust Indenture Act, defined by Trust Indenture Act reference to another statute or defined by Commission rule under the Trust Indenture Act have the meanings assigned to them.
SECTION 9.06. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article Nine may, and shall if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and may be authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 10.01. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of Securities that it will duly and punctually pay the principal of and any premium and interest on the Securities of that series in accordance with the terms of the Securities and this Indenture.
SECTION 10.02. Maintenance of Office or Agency by Company.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee, and the Company hereby appoints the Trustee as its agent to receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for any or all such purposes and may from time to time rescind such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
With respect to any Global Security, and except as otherwise may be specified for such Global Security as contemplated by Section 3.01, the Corporate Trust Office of the Trustee or any Paying Agent shall be the Place of Payment where such Global Security may be presented or surrendered for payment or for registration of transfer or exchange, or where successor Securities may be delivered in exchange therefor; provided, however, that any such payment, presentation, surrender or delivery effected pursuant to the applicable procedures of the Depositary for such Global Security shall be deemed to have been effected at the Place of Payment for such Global Security in accordance with the provisions of this Indenture.
SECTION 10.03. Money for Securities Payments to Be Held in Trust.
If the Company or the Guarantor shall at any time act as its own Paying Agent with respect to any series of Securities, it will, on or before each due date of the principal of or any premium or interest on any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal and any premium and interest so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, prior to each due date of the principal of or any premium or interest on any Securities of that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section 10.03, that such Paying Agent will (1) comply with the provisions of the Trust Indenture Act applicable to it as a Paying Agent and (2) during the continuance of any default by the Company or the Guarantor (or any other obligor upon the Securities of that series) in the making of any payment in respect of the Securities of that series, upon the written request of the Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or by Company Order, direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of or any premium or interest on any Security of any series and remaining unclaimed for two years after such principal, premium or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in New York, New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 10.04. Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 90 days after the end of each fiscal year ending after the date hereof, a certificate from the principal executive officer, principal financial officer or principal accounting officer stating that a review of the activities of the Company during the preceding fiscal year has been made under the supervision of the signing Officer with a view to determining whether the Company has kept, observed, performed and fulfilled its obligations under this Indenture, and further stating, as to such Officer signing such certificate, that to the best of his or her knowledge the Company has kept, observed, performed and fulfilled each and every condition and covenant contained in this Indenture and is not in default in the performance or observance of any of the terms, provisions, covenants and conditions of this Indenture (or, if any such default shall have occurred, describing all such defaults of which he or she may have knowledge and what action the Company is taking or proposes to take with respect thereto).
When any default has occurred and is continuing under this Indenture, the Company shall promptly (which shall be no more than five (5) Business Days) deliver to the Trustee by registered or certified mail or by electronic transmission an Officer’s Certificate specifying such event and what action the Company proposes to take with respect thereto.
SECTION 10.05. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its existence, rights (charter and statutory) and franchises; provided, however, that the Company shall not be required to preserve any such right or franchise if its Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not materially disadvantageous to the Holders of Outstanding Securities.
SECTION 10.06. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, (1) all material taxes, assessments and governmental charges levied or imposed upon the Company or any of its Subsidiaries or upon the income, profits or property or the income, profits or property of the Company or any of its Subsidiaries, and (2) all material lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any of its Subsidiaries; provided, however, that the Company shall not be required to pay or discharge or cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 10.07. Waiver of Certain Covenants.
Except as otherwise specified as contemplated by Section 3.01 for Securities of a specific series, the Company may, with respect to the Securities of any series, omit in any particular instance to comply with any term, provision or condition set forth in any covenant provided pursuant to Section 3.01(21), 9.01(6) or 9.01(11) for the benefit of the Holders of such series, in Article Eight, or in Sections 10.05 and 10.06, if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such affected series shall, by Act of such Holders, either waive such compliance in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
SECTION 10.08. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company or the Guarantor, as applicable, will pay to the Holder of any Security of such series or any coupon appertaining thereto Additional Amounts as may be specified as contemplated by Section 3.01. Whenever in this Indenture there is mentioned, in any context except in the case of Section 5.02, the payment of principal (and premium, if any), the Redemption Price, if any, interest or any other amount payable under or with respect to 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 pursuant to Section 3.01 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms.
Except as otherwise specified as contemplated by Section 3.01, if the Securities of a series provide for the payment of Additional Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior to each date of payment of principal and any premium or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company or the Guarantor, as applicable, will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents if such payment of principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons subject to withholding for or on account of any tax, assessment or other governmental charge described in the Securities of or within the series unless such withholding arises solely because of a connection between the Trustee and the Relevant Jurisdiction other than a connection arising solely as a result of the Trustee performing its obligations under this Indenture, in which case the remaining sentences of this paragraph shall not apply. If any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series or related coupons and the Company or the Guarantor, as applicable, will pay to the Trustee or such Paying Agent the Additional Amounts, if any, required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall not so receive the above-mentioned certificate, then the Trustee or such Paying Agent shall be entitled (i) to assume that no such withholding or deduction is required with respect to any payment of principal or interest with respect to any Securities of a series or related coupons until it shall have received a certificate advising otherwise and (ii) to make all payments of principal and interest with respect to the Securities of a series or related coupons without withholding or deductions until otherwise advised. The Company and the Guarantor covenant to indemnify the Trustee and any Paying Agent and their respective officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense (including legal fees and expenses) reasonably incurred without gross negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to this Section 10.08 or in reliance on the Company or the Guarantor’s not furnishing such an Officer’s Certificate.
SECTION 10.09. Negative Pledge
So long as any of the Securities of this series remains outstanding neither the Company nor the Guarantor will create any mortgage, charge, pledge, lien, encumbrance or other security interest (“Lien”) (other than a Permitted Lien) upon its assets to secure any Quoted Indebtedness or any Qualifying Guarantee of such Quoted Indebtedness, unless in any such case the Company or the Guarantor, as the case may be, grant, for the benefit of holders of the Securities, a security interest in such assets that is equal and ratable to the security interests in favor of the holders of the Quoted Indebtedness (or, in the case of a Lien securing Quoted Indebtedness that is expressly subordinated or junior to the Securities, secured by a Lien that is senior in priority to such Lien).
Notwithstanding anything in this Indenture or the Securities to the contrary, this Indenture and the Securities shall not be deemed to prohibit or restrict, and no Event of Default under this Indenture and the Securities shall result from the existence of any default, violation, early amortization or other adverse event or circumstance under, any Non-recourse Securitization.
SECTION 10.10. Repurchase at the Option of Holders
Except as otherwise specified as contemplated by Section 3.01, if a Change of Control Event occurs, unless the Company has previously or concurrently sent a redemption notice with respect to all the then Outstanding Securities of the applicable series pursuant to Section 11.04, the Holder of any Security of such series shall have the right to require the Company to purchase all or a portion of that Holder’s Securities (equal to $1,000 or an integral multiple thereof) pursuant to the offer described below (the “Change of Control Offer”) at a price in cash (the “Change of Control Payment”) equal to 101% of the principal amount thereof, together with accrued and unpaid interest, if any, to the date of purchase, subject to the right of Holders of such Securities on the relevant Regular Record Date to receive Interest due on the relevant Interest Payment Date.
In connection with any Change of Control Event (but not later than 30 calendar days following any Change of Control Event), the Company shall send notice of such Change of Control Offer, with a copy to the Trustee, the Paying Agent and the Registrar, to each Holder of the Securities to the address of such Holder appearing in the security register, with the following information:
(1) that a Change of Control Offer is being made pursuant to this Section 10.10 and that all Securities properly tendered pursuant to such Change of Control Offer shall be accepted for payment by the Company;
(2) the purchase price and the purchase date, which shall be no earlier than 30 calendar days nor later than 60 days from the date such notice is sent (the “Change of Control Payment Date”);
(3) that any Securities not properly tendered shall remain Outstanding and continue to accrue interest;
(4) that unless the Company defaults in the payment of the Change of Control Payment, all Securities accepted for payment pursuant to the Change of Control Offer shall cease to accrue interest on the Change of Control Payment Date;
(5) that Holders shall be entitled to withdraw their tendered Securities and their election to require the Company to purchase such Securities, provided, however, that the Paying Agent receives, not later than the close of business on the fifth Business Day preceding the Change of Control Payment Date an electronic mail transmission or a letter setting forth the name of the Holder of the Securities, the principal amount of such Securities tendered for purchase, and a statement that such Holder is withdrawing its tendered Securities and its election to have such Securities purchased;
(6) that the Holders whose Securities are being repurchased only in part shall be issued new Securities equal in principal amount to the unpurchased portion of the Securities surrendered, provided that the unpurchased portion of such Securities must be equal to a minimum of $1,000 or an integral multiple thereof;
(7) if such notice is sent prior to the occurrence of a Change of Control Event, stating that the Change of Control Offer is conditional on the occurrence of such Change of Control Event; and
(8) other instructions, as determined by the Company, consistent with the covenant set forth hereunder, that a Holder must follow to tender its Securities.
The Company shall not be required to make a Change of Control Offer following a Change of Control Event if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the Indenture and the Securities applicable to a Change of Control Offer made by the Company and purchases all Securities validly tendered and not withdrawn under such Change of Control Offer and/or (ii) a notice of redemption has been given pursuant to Section 1104, unless and until there is a default in payment of the applicable redemption price. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made in advance of a Change of Control Event, conditional upon the Change of Control, if at the time of making of the Change of Control Offer (i) a definitive agreement is in place for the Change of Control, or (ii) a public offer has been made to acquire all of the outstanding common shares of the Company and has been declared unconditional. To the extent that the provisions of any securities laws or regulations conflict with the provisions of the Indenture or the Securities, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations described in the Indenture and the Securities by virtue thereof.
Subject to Article Nine, the provisions in the Indenture and the Securities relative to the Company’s obligation to make an offer to repurchase the Securities as a result of a Change of Control Event may be waived or modified at any time with the written consent of the Holders of a majority in principal amount of the Securities then Outstanding under the Indenture.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.01. Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as otherwise specified as contemplated by Section 3.01 for such Securities) in accordance with this Article Eleven.
SECTION 11.02. Election to Redeem; Notice to Trustee.
The election of the Company or the Guarantor to redeem any Securities shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01
for such Securities. In case of any redemption at the election of the Company or the Guarantor of less than all the Securities of any series (including any such redemption affecting only a single Security), the Company or the Guarantor, as applicable shall, at least 45 days prior to the Redemption Date fixed by the Company or the Guarantor (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date, of the principal amount of Securities of such series to be redeemed and, if applicable, of the tenor of the Securities to be redeemed. In the case of any redemption of Securities prior to the expiration of any restriction on such redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing compliance with such restriction.
SECTION 11.03. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed (unless all the Securities of such series and of a specified tenor are to be redeemed or unless such redemption affects only a single Security), the particular Securities to be redeemed shall be selected not more than 45 days prior to the Redemption Date, from the Outstanding Securities of such series not previously called for redemption, and such redemption shall be effected by lot in compliance with the requirements of the principal national securities exchange and subject to applicable procedures or regulations of the Depositary; provided that the unredeemed portion of the principal amount of any Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security and provided further that so long as the Securities are represented by one or more Global Securities, such selection shall be made by the Depositary in accordance with its customary procedures. If less than all the Securities of such series and of a specified tenor are to be redeemed (unless such redemption affects only a single Security), the particular Securities to be redeemed (unless such Securities are represented by one or more Global Securities) shall be selected and notice of redemption will be sent in accordance with the applicable procedures of the Depositary to each Holder at least 30 but not more than 45 days prior to the Redemption Date, from the Outstanding Securities of such series and specified tenor not previously called for redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the Securities selected for redemption as aforesaid and, in case of any Securities selected for partial redemption as aforesaid, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with respect to any redemption affecting only a single Security, whether such Security is to be redeemed in whole or in part. In the case of any such redemption in part, the unredeemed portion of the principal amount of the Security shall be in an authorized denomination (which shall not be less than the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to be redeemed only in part, to the portion of the principal amount of such Securities which has been or is to be redeemed.
SECTION 11.04. Notice of Redemption.
Notice of redemption shall be sent in accordance with the applicable procedures of the Depositary not less than 10 nor more than 60 days prior to the Redemption Date, to each Holder of Securities to be redeemed, at his address appearing in the Security Register, with a copy to the Trustee and any Paying Agent, except that redemption notices may be given more than 60 days prior to a Redemption Date if the notice is issued in connection with a Legal Defeasance of the Securities of the relevant series pursuant to Article Fourteen or a satisfaction and discharge of the Indenture pursuant to Article Four.
All notices of redemption shall identify the Securities to be redeemed, including CUSIP number, if any, and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series consisting of more than a single Security are to be redeemed, the identification (and, in the case of partial redemption of any such Securities, the principal amounts) of the particular Securities to be redeemed and, if less than all the Outstanding Securities of any series consisting of a single Security are to be redeemed, the principal amount of the particular Security to be redeemed,
(4) that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed and, if applicable, that interest thereon will cease to accrue on and after said date,
(5) that interest, if any, accrued to the date fixed for redemption will be paid as specified in said notice,
(6) the place or places where each such Security is to be surrendered for payment of the Redemption Price and
(7) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company or, at the Company’s request given two Business Days prior to sending out the notice of redemption, by the Trustee in the name and at the expense of the Company and shall be irrevocable.
The Company may provide in such notice that the payment of the Redemption Price and the performance of its obligations with respect to such redemption of an applicable series of Securities may be performed by another Person and may, at the Company’s discretion, be subject to one or more conditions precedent.
SECTION 11.05. Deposit of Redemption Price.
Prior to any Redemption Date and at the latest at 10:00 am New York City time on the Redemption Date, the Company or the Guarantor shall deposit with the Trustee or with a Paying Agent an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date or the Securities of the series provide otherwise) accrued interest on, all the Securities which are to be redeemed on that date.
SECTION 11.06. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at the Redemption Price therein specified, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest. Upon surrender of any such Security for redemption in accordance with said notice, such Security shall be paid by the Company at the Redemption Price, together, if applicable, with accrued interest to the Redemption Date; provided, however, that, unless otherwise specified as contemplated by Section 3.01, installments of interest whose Stated Maturity is on or prior to the Redemption Date will be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant record dates according to their terms and the provisions of Section 3.07.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal and any premium shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
SECTION 11.07. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized in writing), and the Company shall execute, and the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Security or Securities of the same series and of like tenor, of any authorized denomination as requested by such Holder, in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered and any applicable Guarantee endorsed thereon or attached thereto if such Guarantee was endorsed on or attached to the Security redeemed in part.
SECTION 11.08. Securities No Longer Outstanding After Notice to Trustee and Deposit of Money.
If the Company or the Guarantor, having given notice to the Trustee as provided in Section 11.02, shall have deposited with the Trustee or a Paying Agent, for the benefit of the Holders of any Securities of any series or portions thereof called for redemption in whole or in part cash or other form of payment if permitted by the terms of such Securities (which amount shall be immediately due and payable to the Holders of such Securities or portions thereof), in the amount necessary so to redeem all such Securities or portions thereof on the Redemption
Date and provision satisfactory to the Trustee shall have been made for the giving of notice of such redemption, such Securities or portions thereof, shall thereupon, for all purposes of this Indenture, be deemed to be no longer Outstanding, and the Holders thereof shall be entitled to no rights thereunder or hereunder, except the right to receive payment of the Redemption Price, together with interest accrued to the Redemption Date, on or after the Redemption Date of such Securities or portions thereof.
SECTION 11.09. Other Purchases.
The Company may acquire Securities by means other than a redemption, whether by tender offer, open market purchases, negotiated transactions or otherwise, in accordance with applicable securities laws, so long as such acquisition does not otherwise violate the terms of this Indenture or the Securities. Securities so acquired may be held, resold or, at the Company’s option, surrendered to the Trustee for cancellation.
ARTICLE TWELVE
GUARANTEES
SECTION 12.01. Guarantee.
Subject to this Indenture and unless provided otherwise under any Board Resolution, Officer’s Certificate or indenture supplement hereto, the Guarantor hereby irrevocably, fully and unconditionally guarantees to the Trustee and the Holder of any Security issued under this Indenture duly authenticated and delivered by the Trustee or its Authenticating Agent, the due and punctual payment of the principal of (including any amount in respect of original issue discount), premium and interest, if any (together with any Additional Amounts payable pursuant to the terms of any such Security), on any such Security and the due and punctual payment of the sinking fund payments, if any, and all other obligations of the Company to the Holders or the Trustee provided for pursuant to the terms of the Indenture and the Securities, when and as the same shall become due and payable, whether at Stated Maturity or upon redemption or upon declaration of acceleration or otherwise according to the terms of any such Security and of the Indenture.
In case of default by the Company in the payment of any such principal (including any amount in respect of original issue discount), and any premium or interest (together with any Additional Amounts payable pursuant to the terms of any such Security), sinking fund payment, or analogous obligation, the Guarantor agrees, duly and punctually to pay the same. The Guarantor hereby agrees that its obligations hereunder shall rank pari passu with all other unsecured and unsubordinated obligations of the Guarantor, shall be as principal and not merely as surety, and shall be absolute and unconditional irrespective of any extension of the time for payment of any such Security, any modification of any such Security, any invalidity, irregularity or unenforceability of any such Security or the Indenture, any failure to enforce the same or any waiver, modification, consent or indulgence granted to the Company with respect thereto by the Holder of any such Security or the Trustee, 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
or bankruptcy of the Company, any right to require a demand or proceeding first against the Company, protest or notice with respect to any such Security or the indebtedness evidenced thereby and all demands whatsoever, and, except as provided in the succeeding paragraph, covenants that this Guarantee will not be discharged as to any such Security except by payment in full of the principal of (including any amount payable in respect of original issue discount), and any premium and interest (together with any Additional Amounts payable pursuant to the terms of any such Security) thereon.
If any Holder or the Trustee is required by any court or otherwise to return to the Company, the Guarantor or any custodian, trustee, liquidator or other similar official acting in relation to the Company or the Guarantor, any amount paid by any of them to the Trustee or such Holder, this Guarantee, to the extent theretofore discharged, shall be reinstated in full force and effect.
The Guarantor irrevocably waives any and all rights to which it may be entitled, by operation of law or otherwise, upon making any payment hereunder (i) to be subrogated to the rights of a Holder against the Company with respect to such payment or otherwise to be reimbursed, indemnified or exonerated by the Company in respect thereof or (ii) to receive any payment, in the nature of contribution or for any other reason, from any other obligor with respect to such payment. The Guarantor further agrees that, as between the Guarantor, on the one hand, and the Holders and the Trustee, on the other hand, (i) the maturity of the obligations guaranteed hereby may be accelerated as provided in Article Five for the purposes of this Guarantee, notwithstanding any stay, injunction or other prohibition preventing such acceleration in respect of the obligations guaranteed hereby, and (ii) in the event of any declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guarantee.
SECTION 12.02. Execution and Delivery of Guarantee.
To evidence the Guarantee set forth in Section 12.01, the Guarantor hereby agrees that the Guarantee substantially in the form included in Section 2.06 (or as provided by a Board Resolution, Officer’s Certificate or indenture supplemented hereto pursuant to Section 2.01), unless such language is superseded by a supplemental applicable indenture, shall be endorsed to each Security authenticated and delivered by the Trustee and delivered to the Trustee.
The Guarantor hereby agrees that the Guarantee set forth in Section 12.01 shall remain in full force and effect notwithstanding any failure to endorse a Guarantee on any series of Securities.
If an Officer or member of the Guarantor whose signature is on a Guarantee no longer holds that office at the time the Trustee authenticates the Security entitled to the benefit of such Guarantee, such Guarantee shall be valid nevertheless.
The delivery of any Security by the Trustee, after the authentication thereof hereunder, shall constitute due delivery of a Guarantee set forth in this Indenture on behalf of the Guarantor.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.01. Applicability of Article.
The provisions of this Article Thirteen shall be applicable to any sinking fund for the retirement of Securities of any series except as otherwise specified as contemplated by Section 3.01 for such Securities.
The minimum amount of any sinking fund payment provided for by the terms of any Securities is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of such minimum amount provided for by the terms of such Securities is herein referred to as an “optional sinking fund payment”. If provided for by the terms of any Securities, the cash amount of any sinking fund payment may be subject to reduction as provided in Section 13.02. Each sinking fund payment shall be applied to the redemption of Securities as provided for by the terms of such Securities.
SECTION 13.02. Satisfaction of Sinking Fund Payments with Securities.
The Company or the Guarantor (1) may deliver Outstanding Securities of a series (other than any previously called for redemption) and (2) may apply as a credit Securities of a series which have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, in each case in satisfaction of all or any part of any sinking fund payment with respect to any Securities of such series required to be made pursuant to the terms of such Securities as and to the extent provided for by the terms of such Securities; provided that the Securities to be so credited have not been previously so credited. The Securities to be so credited shall be received and credited for such purpose by the Trustee at the Redemption Price, as specified in the Securities so to be redeemed, for redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly.
SECTION 13.03. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any Securities, the Company will deliver to the Trustee an Officer’s Certificate specifying the amount of the next ensuing sinking fund payment for such Securities pursuant to the terms of such Securities, the portion thereof, if any, which is to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities pursuant to Section 13.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than 30 nor more than 45 days prior to each such sinking fund payment date, the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 11.04. Such notice having been duly given, the redemption of such Securities shall be made upon the terms and in the manner stated in Sections 11.06 and 11.07.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Company’s and Guarantor’s Option to Effect Legal Defeasance or Covenant Defeasance.
If applicable to a particular series of Securities, the Company or the Guarantor may elect, at its option at any time, to have Section 14.02 or Section 14.03 applied to any such series of Securities or any Securities of such series, as the case may be, designated pursuant to Section 3.01 as being defeasible pursuant to such Section 14.02 or 14.03, in accordance with any applicable requirements provided pursuant to Section 3.01 and upon compliance with the conditions set forth below in this Article Fourteen. Any such election shall be evidenced by a Board Resolution or in another manner specified as contemplated by Section 3.01 for such Securities.
SECTION 14.02. Defeasance and Discharge.
Upon the Company’s or the Guarantor’s exercise under this Article Fourteen of the option applicable to this Section 14.02 and Section 14.03 with respect to any series of Securities, the Company and the Guarantor shall, subject to the satisfaction of the conditions set forth in Section 14.04 hereof, be deemed to have been discharged from its obligations with respect to that series of Securities on the date the conditions set forth below are satisfied (“Legal Defeasance”). For this purpose, Legal Defeasance means that the Company and the Guarantor shall be deemed to have paid and discharged the entire indebtedness represented by the outstanding Securities of that series, which shall thereafter be deemed to be “outstanding” only for the purposes of Section 14.05 hereof and the other Sections of this Indenture referred to in Clauses (a) and (b) below, to have satisfied all their other obligations under the Securities of that series and this Indenture (and the Trustee, on demand of and at the expense of the Company or the Guarantor, shall execute proper instruments prepared by the Company acknowledging the same) and to have cured all then existing Events of Default with respect to that series of Securities, except for the following provisions which shall survive until otherwise terminated or discharged hereunder:
(a) the rights of Holders of Securities of that series to receive payments in respect of the principal of, premium, if any, and interest on the Securities of that series when such payments are due solely out of the trust created pursuant to this Indenture for those Securities;
(b) the Company’s or the Guarantor’s obligations with respect to any series of Securities concerning issuing temporary Securities, registration of such Securities, mutilated, destroyed, lost or stolen Securities and the maintenance of an office or agency for payment and money for security payments held in trust;
(c) the rights, powers, trusts, duties and immunities of the Trustee, Security Registrar and Paying Agent and the Company’s or the Guarantor’s obligations in connection therewith;
(d) and this Section 14.02.
Subject to compliance with this Article Fourteen, the Company or the Guarantor may exercise its option under this Section 14.02 notwithstanding the prior exercise of their option under Section 14.03 hereof.
SECTION 14.03. Covenant Defeasance
Upon the Company’s or the Guarantor’s exercise under this Article Fourteen of the option applicable to this Section 14.03 with respect to any series of Securities, the Company and the Guarantor shall, subject to the satisfaction of the conditions set forth in Section 14.04 hereof, be released from their obligations under the covenants with respect to that series of Securities (each, a “Defeased Covenant”, and collectively, the “Defeased Covenants”) contained in Article Eight, Sections 10.04 through 10.06 inclusive, Section 10.09 and any covenants provided pursuant to Sections 3.01(23), 9.01(6) and 9.01(11) hereof with respect to the outstanding Securities on and after the date the conditions set forth in Section 14.04 hereof are satisfied (“Covenant Defeasance”), and the Securities of that series shall thereafter be deemed not “outstanding” for the purposes of any direction, waiver, consent or declaration or act of Holders (and the consequences of any thereof) of Securities of that series in connection with such Defeased Covenants, but shall continue to be deemed “outstanding” for all other purposes hereunder (it being understood that such Securities shall not be deemed outstanding for accounting purposes). For this purpose, Covenant Defeasance means that, with respect to the outstanding Securities of that series, the Company and the Guarantor may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any Defeased Covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Defeased Covenant or by reason of any reference in any such Defeased Covenant to any other provision herein or in any other document, and such omission to comply shall not constitute a default or an Event of Default under Section 5.01 hereof, but, except as specified above, the remainder of this Indenture and such Securities shall be unaffected thereby. In addition, upon the Company’s or Guarantor’s exercise under this Article Fourteen of the option applicable to this Section 14.03 hereof with respect to any series of Securities, subject to the satisfaction of the conditions set forth in Section 14.04 hereof, the events set forth in Section 5.01 (with respect to the foregoing sections of Article Ten only) hereof shall not constitute an Event of Default.
SECTION 14.04. Conditions to Legal Defeasance or Covenant Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to a series of Securities:
(1) the Company or the Guarantor must irrevocably deposit with the Trustee (or another trustee which satisfies the requirements contemplated by Section 6.09 and agrees to comply with the provisions of this Article Fourteen applicable to it) as trust funds in trust, for the benefit of the Holders of that series of Securities, cash in U.S. dollars, Government Securities, or a combination thereof, in such amounts as shall be sufficient, in the opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay the principal amount of, premium, if any, and interest due on that series of Securities on the Stated Maturity or on the Redemption Date, as the case may be, of such principal amount, premium, if any, or
interest on such Securities, and the Company or the Guarantor, as the case may be, must specify whether such Securities are being defeased to Maturity or to a particular Redemption Date;
(2) in the case of Legal Defeasance, the Company or the Guarantor, as the case may be, shall have delivered to the Trustee an Opinion of Counsel reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions,
(A) the Company or the Guarantor, as the case may be, has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(B) since the issuance of the Securities of that series, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions and exclusions, the Holders of that series of Securities shall not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and shall be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Company or the Guarantor shall have delivered to the Trustee an Opinion of Counsel in form reasonably acceptable to the Trustee confirming that, subject to customary assumptions and exclusions, the Holders of that series of Securities shall not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and shall be subject to such tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred;
(4) no default with respect to that series of Securities (other than that resulting from borrowing funds to be applied to make such deposit and any similar and simultaneous deposit relating to such other indebtedness, and in each case, the granting of liens in connection therewith) shall have occurred and be continuing on the date of such deposit;
(5) such Legal Defeasance or Covenant Defeasance shall not result in a breach or violation of, or constitute a default under any material agreement or instrument governing indebtedness (other than this Indenture) to which, the Company or the Guarantor is a party or by which the Company or the Guarantor is bound (other than that resulting from any borrowing of funds to be applied to make the deposit required to effect such Legal Defeasance or Covenant Defeasance and any similar and simultaneous deposit relating to other indebtedness, and, in each case, the granting of liens in connection therewith);
(6) the Company or the Guarantor shall have delivered to the Trustee an Officer’s Certificate stating that the deposit was not made by the Company with the intent of defeating, hindering, delaying or defrauding any creditors of the Company or others;
(7) the Company or the Guarantor shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary
assumptions and exclusions) each stating that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with;
(8) such Legal Defeasance or Covenant Defeasance shall not cause the Trustee to have a conflicting interest within the meaning of the Trust Indenture Act (assuming all Securities are in default within the meaning of such Act); and
(9) such Legal Defeasance or Covenant Defeasance shall not result in the trust arising from such deposit constituting an investment company within the meaning of the Investment Company Act unless such trust shall be registered under the Investment Company Act or exempt from registration thereunder.
SECTION 14.05. Deposited Money and Government Securities to Be Held in Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.03, all money and Government Securities (including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for purposes of this Section 14.05 and Section 14.06, the Trustee and any such other trustee are referred to collectively as the “Trustee”) pursuant to Section 14.04 in respect of any Securities shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment, either directly or through any such Paying Agent (including the Company or the Guarantor acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities, of all sums due and to become due thereon in respect of principal and any premium and interest, but money so held in trust need not be segregated from other funds except to the extent required by law.
The Company and the Guarantor shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Securities deposited pursuant to Section 14.04 or the principal and interest received in respect thereof other than any such tax, fee or other charge which by law is for the account of the Holders of Outstanding Securities.
Anything in this Article Fourteen to the contrary notwithstanding, the Trustee shall deliver or pay to the Company or the Guarantor from time to time upon Company Request any money or Government Securities held by it as provided in Section 14.04 with respect to any Securities which, in the opinion of a nationally recognized firm of independent public accountants expressed in a written certification thereof delivered to the Trustee (which may be the opinion delivered under Section 14.04(1) above), are in excess of the amount thereof which would then be required to be deposited to effect the Legal Defeasance or Covenant Defeasance, as the case may be, with respect to such Securities.
SECTION 14.06. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money or Government Securities in accordance with this Article Fourteen with respect to any Securities by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, then the obligations under this Indenture and such Securities from which the Company and the Guarantor have been discharged or released pursuant to Section 14.02 or 14.03 shall be revived and reinstated as though no deposit had occurred pursuant to this
Article Fourteen with respect to such Securities, until such time as the Trustee or Paying Agent is permitted to apply all such money or Government Securities held in trust pursuant to Section 14.05 with respect to such Securities in accordance with this Article Fourteen; provided, however, that if the Company or the Guarantor makes any payment of principal of or any premium or interest on any such Security following such reinstatement of its obligations, the Company and the Guarantor shall be subrogated to the rights (if any) of the Holders of such Securities to receive such payment from the money so held in trust.
ARTICLE FIFTEEN
MISCELLANEOUS
SECTION 15.01. Counterparts.
This Indenture, any Supplement Indenture and any Security may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Indenture or in any other certificate, agreement or document related to this Indenture shall include images of manually executed signatures transmitted by electronic format (including, without limitation, “pdf,” “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper- based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
SECTION 15.02. Withholding
In order to comply with applicable tax laws, rules and regulations (inclusive of directives, guidelines and interpretations promulgated by competent authorities) in effect from time to time to which a foreign financial institution, issuer, paying agent, holder or other institution is or has agreed to be subject related to this Indenture (“Applicable Tax Law”), the Company agrees (i) to provide to the Trustee and the Paying Agent sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of such transactions) in the Company’s possession so that the Trustee and the Paying Agent can determine whether it has tax related obligations under Applicable Tax Law, and (ii) that the Trustee and the Paying Agent shall be entitled to make any withholding or deduction from payments under the Indenture to the extent necessary to comply with Applicable Tax Law. The terms of this Section 15.02 shall survive the termination of this Indenture.
SECTION 15.03. No Personal Liability of Directors, Officers, Employees and Stockholders
None of the Company’s or the Guarantor’s past, present or future directors, officers, employees, or shareholders or any of their direct or indirect equity holders shall have any liability for any of the Company’s or the Guarantor’s obligations under any series of Securities or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Holder or beneficial owner of any Security, by accepting such Security, is deemed to waive and release all such liability. The waiver and release are part of the consideration for issuance of such Securities.
SECTION 15.04. Office of Foreign Assets Control Sanctions Representations.
(a) Each of the Company and the Guarantor represent as of the date hereof that neither it nor any of its subsidiaries, nor, to its knowledge, any of its affiliates, directors, senior executive officers or officers with ability to direct/control operations are the target or subject of any sanctions enforced by the US Government (including, without limitation, the Office of Foreign Assets Control of the US Department of the Treasury or the US Department of State), the United Nations Security Council, the European Union, or His Majesty’s Treasury (collectively “Sanctions”).
(b) Each of the Company and the Guarantor covenant that neither it nor any of its subsidiaries will directly or indirectly use the proceeds of any offerings of Securities pursuant to this Indenture, (i) to fund or facilitate any activities of or business with any person who, at the time of such funding or facilitation, is the subject or target of Sanctions, or (ii) in any other manner that will result in a violation of Sanctions by any person.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as of the day and year first above written.
STELLANTIS FINANCE US INC.
as Company
By: ______________________________
Name:
Title:
STELLANTIS N.V.
as Guarantor
By: ______________________________
Name:
Title:
THE BANK OF NEW YORK MELLON,
as Trustee
By: ______________________________
Name:
Title:
| Advocaten | |||||
| Notarissen | |||||
| Belatingadviseurs | |||||
| Burgerweeshuipad 201 P.O. Box 75084 1070 AB Amsterdam | |||||
| T +31 20 577 1771 | |||||
| T +31 20 577 1775 | |||||
Exhibit 5.1 and Exhibit 8.1
Stellantis N.V.
Taurusavenue 1
2132LS Hoofddorp
The Netherlands
(the "Issuer")
| Date | 3 August 2026 | B. Boutellier | ||||||
| E bas.boutellier@debrauw.com | ||||||||
| Our ref. | M47683512/1/20731795 | T +31 20 577 1442 | ||||||
| T +31 20 577 1442 | ||||||||
Re:
Dear Addressee,
Registration with the US Securities and Exchange Commission of the Debt Securities, Common Shares and Guarantees
1 INTRODUCTION
We, De Brauw Blackstone Westbroek N.V., ("De Brauw") act as Dutch legal advisers to the Issuer in connection with the Registration.
Certain terms used in this opinion are defined in the Annex (Definitions).
2 SCOPE OF WORK
As set out in paragraphs 1 and 7, we give this opinion as Dutch legal advisers and our duty of care is governed by Dutch law. By implication:
(a)This opinion is limited to Dutch law. It (including all terms used in it) is to be construed in accordance with Dutch law.
(b)As required by Dutch law, in preparing and issuing this opinion, we have observed the care which is to be expected from a reasonably proficient and reasonably acting Dutch opinion giver in similar circumstances (including our reputation) and accordingly:
(i)we have performed the factual research set out in paragraph 3 and not any additional fact-finding actions (including not in respect of the
| De Brauw Blackstone Westbroek N.V., Amsterdam, is registered with the Trade Register in the Netherlands under no. 27171912. All services and other work are carried out under an agreement of instruction ("overeenkomst van opdracht") with De Brauw Blackstone Westbroek N.V. The agreement is subject to the General Conditions, which have been filed with the register of the District Court in Amsterdam and contain a limitation of liability. Client account notaries ING Bank IBAN NL83INGB0693213876 BIC INGBNL2A. | ||
correctness of the assumptions in paragraph 4 or the applicability of the qualifications in paragraph 6 except as expressly set out in it);
(ii)we have examined the text of the documents listed in paragraph 3 and not researched their meaning and effect beyond their semantic meaning to a Dutch opinion giver (including not their meaning and effect under any law other than Dutch law);
(iii)we have performed legal research into Dutch law reasonably likely to be relevant to this opinion and not any additional legal research (including into Dutch law not in effect on or prior to the date of this opinion); and
(iv)we do not express any opinion or view other than as expressly set out in paragraphs 5 and 6 (including not in respect of any document, or on any reference to a document, not listed in paragraph 3).
This opinion is limited to its date.
3 FACTUAL RESEARCH
We have examined the following documents:
(a)A copy of:
(i)the Registration Statement;
(ii)the Draft Debt Securities Indenture; and
(iii)the Draft Guarantees Indenture.
(b) A copy of:
(i)the Issuer's deed of incorporation and its articles of association, as provided by the Chamber of Commerce (Kamer van Koophandel);
(ii)the Board Regulations; and
(iii)the Trade Register Extract.
(c) A copy of:
(i)the Draft Corporate Resolution; and
(ii)the Draft Deed of Issuance
In addition, we have obtained the following confirmations on the date of this opinion:
(d) Confirmation by telephone from the Chamber of Commerce that the Trade Register Extract is up to date.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(e) Confirmation through https://data.europa.eu/data/datasets/consolidated-list-of-persons-groups-and-entities-subject-to-eu-financial-sanctions?locale=en and https://www.rijksoverheid.nl/documenten/rapporten/2015/08/27/nationale-terrorismelijst that the Issuer is not included on any Sanctions List.
(f) Confirmation through www.rechtspraak.nl, derived from the Central Insolvency Register (including from the segments for EU registrations and publications about public composition proceedings outside bankruptcy), that the Issuer is not registered as being subject to a public Dutch Insolvency or foreign Insolvency Proceedings.
4 ASSUMPTIONS
We have made the following assumptions:
(a)
(i)Each copy document conforms to the original and each original is genuine and complete.
(ii)
(A)Each signature (including each electronic signature) is the genuine signature of the individual concerned.
(B)Each electronic signature is a qualified electronic signature or the signing method used for it is sufficiently reliable.
(iii)Each confirmation listed in paragraph 3 is true.
(b)
(i)The Board Regulations remain in force without modification.
(ii)The Draft Corporate Resolution will have been duly adopted prior to the issue or grant of any Debt Securities, Common Shares and Guarantees, and will thereafter remain in force without modification.
(iii)A Draft Deed of Issuance will have been duly executed on the moment the Issuer issues the number of Common Shares set out therein.
(iv)The Draft Debt Securities Indenture, and any relevant forms included therein, will have been duly executed on the moment the Issuer issues any Debts Securities.
(v)The Draft Guarantees Indenture, and any relevant forms included therein, will have been duly executed on the moment the Issuer grants any Guarantees.
(vi)The Draft Corporate Resolution will have been duly adopted prior to the issue or grant of any Debt Securities, Common Shares and Guarantees, and will thereafter remain in force without modification.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(vii)A Draft Deed of Issuance will have been duly executed on the moment the Issuer issues the number of Common Shares set out therein.
(viii)The Draft Debt Securities Indenture, and any relevant forms included therein, will have been duly executed on the moment the Issuer issues any Debts Securities.
(ix)The Draft Guarantees Indenture, and any relevant forms included therein, will have been duly executed on the moment the Issuer grants any Guarantees.
(c)
(i)The Registration Statement and the Draft Indentures have been or will have been filed with the SEC in the form referred to in this opinion.
(ii)Where required, the Debt Securities and the Guarantees have been or will have been validly authenticated in accordance with, respectively, the Draft Debt Securities Indenture and the Draft Guarantees Indenture.
(iii)All Debt Securities and all Guarantees have been or will have been signed on behalf of the Issuer, manually or, with the approval of the signatory concerned, in facsimile by the number of authorized representatives required by the Issuer's articles of association.
(iv)
(A)The issue by the Issuer of the Common Shares (or of any rights to acquire Common Shares), will have been validly authorised; and
(B)any pre-emption rights in respect of the issue of the Common Shares (or of any rights to acquire Common Shares) will have been observed or validly excluded;
all in accordance with the Issuer's articles of association at the time of authorisation or of observance or exclusion.
(v)The Issuer's authorised share capital at the time of issue of any Common Share will be sufficient to allow for the issue.
(vi)The Common Shares will have been:
(A)issued in the form and manner prescribed by the articles of association at the time of issue; and
(B)otherwise offered, issued and accepted by their subscribers in accordance with all applicable laws (including, for the avoidance of doubt, Dutch law).
(vii)The nominal amount of the Common Shares and any agreed share premium will have been validly paid.
(d) When validly signed by all parties (including by electronic signature), the Draft Indentures, the Debt Securities and the Guarantees are valid and binding on and enforceable against each party under New York law by which they are expressed to be governed.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(e)
(i)Any Debt Securities offered to the public in the Netherlands have been, are and will be so offered in accordance with the Prospectus Regulation and the Offer Regulations.
(ii)The Debt Securities have not been, are not and will not be admitted to trading on the regulated market of Euronext Amsterdam or on any other regulated market in the Netherlands.
(iii)At the time when it disposed or disposes of the Debt Securities in the context of the offer of the Debt Securities, the Issuer did or does not possess inside information in respect of the Issuer or the trade in the Debt Securities.
(f) The Issuer does not qualify as a bank (bank) within the meaning of the Wft.
(g) The Issuer (being the Guarantor as defined in the Draft Guarantees Indenture) and Stellantis Finance (being the Company as defined in the Draft Guarantee Indenture) belong to the same group (groep).
(h) Each Draft Indenture and each transaction entered into pursuant to it are entered into on an arm's length basis, and the Debt Securities have been or will be issued on an arm's length basis.
5 OPINION
Within the limitations set out in paragraph 2, based on the factual research described in paragraph 3 and the assumptions made in paragraph 4, and subject to the qualifications in paragraph 6 and any matters not disclosed to us in the context of this opinion, we are of the following opinion:
(a) The Issuer has been incorporated and exists as a public limited liability company (naamloze vennootschap).
(b)When issued, the Common Shares will have been validly issued and will be fully paid and nonassessable1.
(c)
(i)The Issuer has the corporate power to enter into and perform each Draft Indenture and to issue and perform the Debt Securities and the Guarantees.
(ii)The Issuer has taken all necessary corporate action to authorise its entry into and performance of each Draft Indenture and its issue and performance of the Debt Securities and the Guarantees.
(d)
1 In this opinion, "nonassessable" – which term has no equivalent in Dutch – means, in relation to a share, that the issuer of the share has no right to require the holder of the share to pay to the issuer any amount (in addition to the amount required for the share to be fully paid) solely as a result of his shareholdership.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(i)The Issuer does not require any governmental licence, dispensation, recognition or other consent for its entry into and performance of any Draft Indenture or for its issue and performance of the Debt Securities and the Guarantees.
(ii)There are no governmental registration, filing or similar formalities required to ensure the validity and binding effect on and enforceability against the Issuer of any Draft Indenture or for its issue and performance of the Debt Securities and the Guarantees.
(e) The Issuer's entry into and performance of each Draft Indenture, and the issue and performance of the Debt Securities and the Guarantees, do not violate Dutch law or its articles of association.
(f)
(i)The choice of New York law as the governing law of each Draft Indenture and the Debt Securities and the Guarantees is recognised.
(ii)Dutch law does not restrict the validity and binding effect on and enforceability against the Issuer of each Draft Indenture.
(g)
(i)To the extent that the submission to the jurisdiction of the New York Courts in each Draft Indenture:
(A)is governed by the Hague Choice of Court Convention, it is valid and binding on and enforceable against the Issuer; and
(B)is also governed by the law designated by the private international law of New York, Dutch law does not restrict its validity and binding effect on and enforceability against the Issuer.
(ii) An enforceable judgment in a civil or commercial matter rendered by the
New York Courts pursuant to the submission to its jurisdiction in each
Draft Indenture can be enforced in the Netherlands in accordance with
the Hague Choice of Court Convention.
(h) The statements in the Registration Statement under the heading "Dutch Taxation of Debt Securities" and "Dutch Taxation of Common Shares" included in the chapter "TAXATION", to the extent that they are statements as to Dutch Tax law, are correct in all material aspects.
6 QUALIFICATIONS
This opinion is subject to the following qualifications:
(a)This opinion is subject to any limitations arising from (i) rules relating to Dutch Insolvencies, (ii) rules relating to foreign insolvency or composition or restructuring proceedings (including foreign Insolvency Proceedings), (iii) other rules regulating conflicts between rights of creditors, or (iv) resolution, intervention and other measures in relation to financial enterprises or their affiliated entities.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(b)The recognition of New York law as the governing law of each Draft Indenture and the Debt Securities and the Guarantees:
(i)will not prejudice the provisions of the law of the European Union (where appropriate as implemented in the Netherlands) which cannot be derogated from by agreement if all elements relevant to the situation at the time when the relevant Draft Indenture was entered into or the Debt Securities or the Guarantees were issued (other than the choice of New York law as the governing law of the Draft Indentures, Debt Securities and Guarantees, as applicable) are located in one or more Member States of the European Union;
(ii)
(A)will not restrict the application of the overriding provisions of Dutch law; and
(B)will not prevent effect being given to the overriding provisions of the law of a jurisdiction with which the situation has a close connection;
(and for this purpose "overriding provisions" are provisions the respect for which is regarded as crucial by a jurisdiction for safeguarding its public interests to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to an agreement);
(iii)will not prevent the application of New York law being refused if it is manifestly incompatible with Dutch public policy (ordre public); and
(iv)will not prevent regard being had to the law of the jurisdiction in which performance takes place in relation to the manner of performance and the steps to be taken in the event of defective performance.
(c) If a legal act (rechtshandeling) performed by a Dutch legal entity (including (without limitation) an agreement pursuant to which it guarantees the performance of, or provides or agrees to provide security for, any of another person's obligations and any other legal act having a similar effect) is not in the entity's interest, the act may (i) exceed the entity's corporate or other power, (ii) violate its articles of association, and (iii) be nullified by it if the other party or parties to the act knew or should have known without investigation that the act is not in the entity's interest.
(d) To the extent Dutch law applies, a legal act (rechtshandeling) performed by a person (including an agreement pursuant to which it guarantees the performance of another person's obligations, or provides or agrees to provide security for its or another person's obligations and any other legal act having a similar effect) may be nullified by (i) any of its creditors, or (ii), in case of bankruptcy, its bankruptcy trustee, if (A) it performed the act without an obligation to do so (onverplicht), (B) the creditor concerned or, in case of its bankruptcy, any creditor was prejudiced as a consequence of the act, and (C) at the time the act was performed both it and
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(unless the act was for no consideration (om niet)) the party with or towards which it acted, knew or should have known that one or more of its creditors (existing or future) would be prejudiced. In addition, in the case of a person's bankruptcy, its bankruptcy trustee may nullify that person's performance of any due and payable obligation (opeisbare schuld) (including an obligation to provide security for its or another person's obligations) if (X) the recipient knew that a request for bankruptcy had been filed, or (Y) the performance of the obligation was the result of consultation between it and the recipient with a view to give preference to the latter over the person's creditors.
(e) Enforcement in the Netherlands of each Draft Indenture, the Debt Securities and the guarantees and of foreign judgments is subject to Dutch rules of civil procedure.
(f) The Sanction Act 1977 (Sanctiewet 1977) or international sanctions may affect whether (i) the Issuer's entry into and performance of the Draft Indentures, Debt Securities and the Guarantees are valid, binding and enforceable.
(g) To the extent that the Debt Securities (or any part thereof) are general conditions within the meaning of article 6:231 BW, a holder of a Note may nullify (vernietigen) a provision therein if (i) the Issuer has not offered the holder a reasonable opportunity to examine the Terms and Conditions, or (ii) the provision, having regard to all relevant circumstances, is unreasonably onerous to the holder. A provision in general conditions as referred to in article 6:236 BW is deemed to be unreasonably onerous, irrespective of the circumstances, if the holder of a Note is a natural person not acting in the conduct of a profession or trade.
(h) In proceedings in a Dutch court for the enforcement of any Draft Indenture or the Guarantee, the court may mitigate amounts due in respect of litigation and collection costs.
(i)
(i)An extract from the Trade Register does not provide conclusive evidence that the facts set out in it are correct. However, under the 2007 Trade Register Act (Handelsregisterwet 2007), subject to limited exceptions, a legal entity or partnership cannot invoke the incorrectness or incompleteness of its Trade Register registration against third parties who were unaware of the incorrectness or incompleteness.
(ii)A confirmation from the Central Insolvency Register does not provide conclusive evidence that an entity is not subject to a Dutch Insolvency or foreign Insolvency Proceedings (also because they are not all registered).
(j) We do not express any opinion on:
(i)competition (including state aid) matters; and
(ii)tax matters other than in paragraph 5(h)
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
7 RELIANCE
(a)This opinion is an exhibit to the Registration Statement and may be relied upon for the purpose of the Registration. It may not be supplied, and its contents or existence may not be disclosed, to any person other than as an Exhibit to (and therefore together with) the Registration Statement.
(b)Each person relying on this opinion in doing so agrees that:
(i)the agreements in this paragraph 7, our duty of care and all liability and other matters relating to this opinion will be governed exclusively by Dutch law and the Dutch courts will have exclusive jurisdiction to settle any dispute relating to them; and
(ii)only we, De Brauw, (and not any other person, including any person working at or affiliated with us) will have any liability in connection with this opinion.
(c) The Issuer may:
(i) file this opinion as an exhibit to the Registration Statement; and
(ii) refer to De Brauw giving this opinion in the Exhibit Index in the Registration Statement.
The previous sentence is no admittance from us that we are in the category of persons whose consent for the filing and reference as set out in that sentence is required under article 7 of the Securities Act or any rules or regulations of the SEC promulgated under it.
Yours faithfully,
/s/ De Brauw Blackstone Westbroek N.V.
Bas Boutellier
Advocaat
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
Annex – Definitions
Part 1 - General
In this opinion:
"Board Regulations" is defined in part 2 (Issuer) of this Annex.
"BW" means the Civil Code (Burgerlijk Wetboek).
"Common Shares" means the common shares in the share capital of the Issuer that will be registered with the SEC pursuant to the Registration.
"De Brauw" means De Brauw Blackstone Westbroek N.V.
"Debt Securities" means the debt securities that will be registered with the SEC pursuant to the Registration.
"Draft Debt Securities Indenture" is defined in part 3 (Indentures) of this Annex.
"Draft Corporate Resolution" is defined in part 2 (Issuer) of this Annex.
"Draft Deed of Issue" is defined in part 2 (Issuer) of this Annex.
"Dutch Insolvency" means bankruptcy (faillissement), suspension of payments (surseance van betaling) or restructuring proceedings outside bankruptcy (akkoordprocedures buiten faillissement).
"Dutch law" means the national law of the Netherlands and European Union and international law to the extent directly applicable in the Netherlands.
"Dutch Taxes" means any taxes of any nature levied by or on behalf of the Netherlands or any of its subdivisions or taxing authorities.
"Guarantees" means the guarantees that will be registered with the SEC pursuant to the Registration.
"Draft Guarantees Indenture" is defined in part 3 (Indentures) of this Annex.
"Insolvency Proceedings" means insolvency proceedings as defined in Article 2(4) of Regulation (EU) 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings (recast).
"Issuer" is defined in part 2 (Issuer) of this Annex.
"New York law" means the laws of the State of New York without regard to its conflicts of laws principles.
"New York Courts" means any court in the State of New York, New York County or brought under U.S. federal or state securities laws.
"Offer Regulations" means:
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
(a)Commission Delegated Regulation (EU) 2019/979 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council with regard to regulatory technical standards on key financial information in the summary of a prospectus, the publication and classification of prospectuses, advertisements for securities, supplements to a prospectus, and the notification portal, and repealing Commission Delegated Regulation (EU) No 382/2014 and Commission Delegated Regulation (EU) 2016/301;
(b)Commission Delegated Regulation (EU) 2019/980 of 14 March 2019 supplementing Regulation (EU) 2017/1129 of the European Parliament and of the Council as regards the format, content, scrutiny and approval of the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Commission Regulation (EC) No 809/2004;
(c)Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC;
(d)Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies to the extent applicable; and
(e)the Wft.
"Prospectus Regulation" means Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC.
"Registration" means the registration of the Debt Securities, the Common Shares and the Guarantees with the SEC under the Securities Act.
"Registration Statement" means the registration statement on form F-3 dated 3 August 2026 in relation to the Registration (excluding any documents incorporated by reference in it and any exhibits to it).
"Sanctions List" means each of:
(a)the Consolidated list of persons, groups and entities subject to EU financial sanctions; and
(b)the National sanction list terrorism (Nationale sanctielijst terrorisme).
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act" means the U.S. Securities Act of 1933, as amended.
"Stellantis Finance" means Stellantis Finance US Inc., a corporation duly organized and existing under the laws of the State of Delaware, having its principal address at 1000 Chrysler Drive, Auburn Hills, MI 48326.
"the Netherlands" means the European part of the Netherlands.
"Trade Register Extract" is defined in part 2 (Issuer) of this Annex.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
"Wft" means the Financial Markets Supervision Act (Wet op het financieel toezicht).
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
Part 2 – Issuer
In this opinion:
"Board Regulations" means the regulations of the board of directors of the Company adopted on 10 October 2024 pursuant to article 20.3 of the Company's articles of association.
"Draft Corporate Resolution" means the draft written resolution of the Issuer's board of directors, drawn up by De Brauw (draft dated 30 July 2026).
"Draft Deed of Issue" means the draft deed of issue to issue common shares in the share capital of the Issuer, drawn up by De Brauw (draft dated 30 July 2026).
"Issuer" means Stellantis N.V., a public limited liability company (naamloze vennootschap), with seat in Amsterdam, the Netherlands, Trade Register number 60372958.
"Trade Register Extract" means a Trade Register extract relating to the Issuer provided by the Chamber of Commerce and dated 3 August 2026.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
Part 3 – Indentures
In this opinion:
"Draft Debt Securities Indenture" means the draft indenture in respect of the Debt Securities, received on 1 August 2026, and to be entered into between the Issuer and The Bank of New York Mellon.
"Draft Guarantees Indenture" means the draft indenture in respect of the Guarantees received on 1 August 2026, and to be entered into between the Issuer, Stellantis Finance. and The Bank of New York Mellon.
"Draft Indentures" means the Draft Debt Securities Indenture and the Draft Guarantees Indenture, and the term "Draft Indenture" is to be construed accordingly.
| Legal opinion on Debt Securities, Common Shares and Guarantees Onze ref. M47689050/3/20731795 | ||
Exhibit 5.2
| A LIMITED LIABILITY PARTNERSHIP TELEPHONE: +44 (0)20-7959-8900 FACSIMILE: +44 (0)20-7959-8950 WWW.SULLCROM.COM | One New Fetter Lane London EC4A 1AN, England ______________________ BRUSSELS • FRANKFURT • PARIS LOS ANGELES • NEW YORK • PALO ALTO • WASHINGTON, D.C. BEIJING • HONG KONG • TOKYO MELBOURNE • SYDNEY | |||||||
August 3, 2026
Stellantis N.V.,
Taurusavenue 1,
2132 LS Hoofddorp,
The Netherlands.
Stellantis Finance US Inc.,
1000 Chrysler Drive,
Auburn Hills, MI 48326, USA.
Ladies and Gentlemen:
In connection with the registration under the Securities Act of 1933 (the “Act”), of an indeterminate aggregate amount of (i) debt securities (the “Debt Securities”) of Stellantis N.V., a public limited liability company incorporated under the laws of The Netherlands (“Stellantis”) and of Stellantis Finance US Inc., a Delaware corporation (“Stellantis Finance”) and, in the case of the Debt Securities of Stellantis Finance, the related guarantees (the “Guarantees”) of such Debt Securities by Stellantis and (ii) common shares (the “Common Shares”), nominal value EUR 0.01 per share, of Stellantis, we, as your United States counsel, have examined such corporate records, certificates and other documents, and such questions of law, as we have considered necessary or appropriate for the purposes of this opinion.
Upon the basis of such examination, it is our opinion that:
Sullivan & Cromwell LLP carries on business in England and Wales through Sullivan & Cromwell MNP LLP, a registered limited liability partnership established under the laws of the State of New York. The personal liability of our partners is limited to the extent provided in such laws. Additional information is available upon request or at www.sullcrom.com. Sullivan & Cromwell MNP LLP is authorized and regulated by the Solicitors Regulation Authority (Number 00308712). A list of the partners’ names and professional qualifications is available for inspection at 1 New Fetter Lane, London EC4A 1AN. All partners are either registered foreign lawyers or solicitors.
Stellantis N.V.
Stellantis Finance US Inc.
2
(i) when the Registration Statement on Form F-3 (the “Registration Statement”) has become effective under the Act, the indenture relating to the Debt Securities of Stellantis has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.1 to the Registration Statement (the “Stellantis Indenture”), the terms of the Debt Securities of Stellantis and of their issuance and sale have been duly established in conformity with the Stellantis Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Stellantis, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Stellantis, and the Debt Securities of Stellantis have been duly executed and authenticated in accordance with the Stellantis Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of Stellantis will constitute valid and legally binding obligations of Stellantis, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles; and
(ii) when the Registration Statement has become effective under the Act, the Indenture relating to the Debt Securities of Stellantis Finance has been duly authorized, executed and delivered by the parties thereto in substantially the form filed as Exhibit 4.3 to the Registration Statement (the “Stellantis Finance Indenture”), the terms of the Debt Securities of Stellantis Finance and the related Guarantees and of their issuance and sale have been duly established in conformity with the Stellantis Finance Indenture so as not to violate any applicable law or result in a default under or breach of any agreement or instrument binding upon Stellantis Finance or Stellantis, as applicable, and so as to comply with any requirement or restriction imposed by any court or governmental body having jurisdiction over Stellantis Finance or Stellantis, as applicable, and the Debt Securities of Stellantis Finance and the related Guarantees have been duly executed and, in the case of the Debt Securities of Stellantis Finance, authenticated in accordance with the Stellantis Finance Indenture and issued and sold as contemplated in the Registration Statement, the Debt Securities of Stellantis Finance will
Stellantis N.V.
Stellantis Finance US Inc.
3
constitute valid and legally binding obligations of Stellantis Finance and the Guarantees by Stellantis will constitute valid and legally binding obligations of Stellantis, in each case, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors’ rights and to general equity principles.
In rendering the foregoing opinion, we are not passing upon, and assume no responsibility for, any disclosure in any registration statement or any related prospectus or other offering material relating to the offer and sale of the Debt Securities, the Guarantees and the Common Shares.
We note that, as of the date of this opinion, a judgment for money in an action based on a Debt Security denominated in a foreign currency or currency unit or the related Guarantee in a Federal or state court in the United States ordinarily would be enforced in the United States only in United States dollars. The date used to determine the rate of conversion of the foreign currency or currency unit in which a particular Debt Security is denominated or the related Guarantee into United States dollars will depend upon various factors, including which court renders the judgment. In the case of a Debt Security or related Guarantee denominated in a foreign currency, a state court in the State of New York rendering a judgment on such Debt Security or Guarantee would be required under Section 27 of the New York Judiciary Law to render such judgment in the foreign currency in which the Debt Security or Guarantee is denominated, and such judgment would be converted into United States dollars at the exchange rate prevailing on the date of entry of the judgment.
The foregoing opinion is limited to the Federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and we are expressing no opinion as to the effect of the laws of any other jurisdiction. For the purposes of our opinion, we have assumed that (i) Stellantis has been duly incorporated and is a validly existing public limited liability company (naamloze vennootschap) under the laws of The Netherlands, (ii) the Stellantis Indenture and the Stellantis Finance Indenture will be duly authorized, executed and delivered by Stellantis under the laws of the The Netherlands, (iii) the
Stellantis N.V.
Stellantis Finance US Inc.
4
execution and delivery of the Stellantis Indenture and the Stellantis Finance Indenture will not result in any breach or violation of, or conflict with, any Dutch statute, rule or regulation and (iv) the provisions of the Stellantis Indenture and the Stellantis Finance Indenture designating the law of the State of New York as the governing law of such indenture will be valid and binding on
Stellantis under the laws of The Netherlands. With respect to all matters of Dutch law, we note that you have received an opinion, dated the date hereof, of De Brauw Blackstone Westbroek N.V.
We have relied as to certain factual matters on information obtained from public officials, officers of Stellantis and Stellantis Finance and other sources believed by us to be responsible.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the heading “Validity of Securities” in the prospectus included in the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, | |||||
| /s/ SULLIVAN & CROMWELL LLP | |||||
Exhibit 8.2
| A LIMITED LIABILITY PARTNERSHIP TELEPHONE: +44 (0)20-7959-8900 FACSIMILE: +44 (0)20-7959-8950 WWW.SULLCROM.COM | One New Fetter Lane London EC4A 1AN, England ______________________ BRUSSELS • FRANKFURT • PARIS LOS ANGELES • NEW YORK • PALO ALTO • WASHINGTON, D.C. BEIJING • HONG KONG • TOKYO MELBOURNE • SYDNEY | |||||||
August 3, 2026
Stellantis N.V.,
Taurusavenue 1,
2132 LS Hoofddorp,
The Netherlands.
Stellantis Finance US Inc.,
1000 Chrysler Drive,
Auburn Hills, MI 48326, USA.
Ladies and Gentlemen:
We have acted as your United States federal income tax counsel in connection with the filing, on the date hereof, of your Form F-3 Registration Statement filed with the U.S. Securities and Exchange Commission under the Securities Act of 1933 (the “Act”) on August 3, 2026 (as amended, the “Registration Statement”). We hereby confirm to you that, insofar as it relates to matters of United States federal income tax law, the discussion in the Prospectus included in the Registration Statement, under the caption “TAXATION – United States Taxation of Debt Securities” subject to the qualifications, exceptions, assumptions and limitations contained therein, is our opinion and is fair and accurate in all material respects.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act.
| Very truly yours, | |||||
| /s/ SULLIVAN & CROMWELL LLP | |||||
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in this Registration Statement on Form F-3 of our report dated February 26, 2026, relating to the financial statements of Stellantis N.V and the effectiveness of Stellantis N.V's internal control over financial reporting, appearing in the Annual Report on Form 20-F of the Company for the year ended December 31, 2025. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Associés
Paris-La Défense, France
August 3, 2026
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the Registration Statement on Form F-3 and on Form S-8 pertaining to the “Shares To Win” 2026 Stellantis Employee Shareholding Plan of Stellantis N.V. of our report dated February 22, 2024, with respect to the consolidated financial statements of Stellantis N.V. included in its Annual Report on Form 20-F for the year ended December 31, 2025, filed with the Securities and Exchange Commission.
/s/ EY S.p.A.
Turin, Italy
August 3, 2026
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 (Jurisdiction of incorporation if not a U.S. national bank) | 13-5160382 (I.R.S. employer identification no.) | ||||
| 240 Greenwich Street, New York, N.Y. (Address of principal executive offices) | 10286 (Zip code) | ||||
Stellantis N.V.
(Exact name of obligor as specified in its charter)
| The Netherlands (State or other jurisdiction of incorporation or organization) | Not Applicable (I.R.S. employer identification no.) | ||||
| Taurusavenue 1 2132 LS Hoofddorp The Netherlands (Address of principal executive offices) | (Zip code) | ||||
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 | 550 17th Street, NW Washington, D.C. 204 | ||||
| The Clearing House Association L.L.C. | 100 Broad Street New York, N.Y. 10004 | ||||
(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.
16. List of Exhibits.
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").
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. 333-261533).
-2-
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. 333-229519).
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.
-3-
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 Houston, and State of Texas, on the 21st day of July, 2026.
THE BANK OF NEW YORK MELLON
By: /s/ Peggy Guel
Name: Peggy Guel
Title: As Agent
-4-
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2026, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | ||||
Cash and balances due from depository institutions: Noninterest-bearing balances and currency and | |||||
| coin........................................................................... | 5,151,000 | ||||
| Interest-bearing balances.......................................... | 179,331,000 | ||||
| Securities: | |||||
| Held-to-maturity securities...................................... | 48,830,000 | ||||
| Available-for-sale debt securities................................ | 106,552,000 | ||||
Equity securities with readily determinable fair values not held for trading…………….................. | 0 | ||||
Federal funds sold and securities purchased under agreements to resell: | |||||
| Federal funds sold in domestic offices..................... | 0 | ||||
Securities purchased under agreements to resell...... | 24,813,000 | ||||
Loans and lease financing receivables: Loans and leases held for sale………….............…. | 0 | ||||
| Loans and leases held for investment……….......... | 60,448,000 | ||||
| LESS: Allowance for credit losses on loans and leases………............................................ | 211,000 | ||||
| Loans and leases held for investment, net of allowance................................................................. | 60,237,000 | ||||
Trading assets.............................................................. | 8,224,000 | ||||
| Premises and fixed assets (including right-of-use assets)........................................................................ | 3,478,000 | ||||
| Other real estate owned............................................... | 0 | ||||
Investments in unconsolidated subsidiaries and associated companies............................................... | 2,481,000 | ||||
Direct and indirect investments in real estate ventures ……………………..……………………. | 0 | ||||
| Intangible assets…………………….....……………. | 7,343,000 | ||||
| Other assets................................................................. | 20,909,000 | ||||
| Total assets.................................................................. | 467,349,000 | ||||
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| LIABILITIES | |||||
Deposits: | |||||
| In domestic offices................................................... | 302,628,000 | ||||
| Noninterest-bearing.................................................. | 124,486,000 | ||||
| Interest-bearing........................................................ | 178,142,000 | ||||
In foreign offices, Edge and Agreement subsidiaries, and IBFs........................................... | 117,096,000 | ||||
| Noninterest-bearing.................................................. | 10,404,000 | ||||
| Interest-bearing........................................................ | 106,692,000 | ||||
Equity securities with readily determinable fair values not held for trading…......…………............ | 0 | ||||
Federal funds sold and securities purchased under agreements to repurchase: Federal funds sold in domestic offices.................... | 0 | ||||
| Federal funds purchased in domestic offices.............. | 0 | ||||
| Securities sold under agreements to repurchase.................................................................... | 2,787,000 | ||||
| Trading liabilities........................................................ | 2,480,000 | ||||
Other borrowed money: (includes mortgage indebtedness)…...................…. | 3,682,000 | ||||
| Not applicable | |||||
| Not applicable | |||||
Subordinated notes and debentures ................................................................... | 0 | ||||
| Other liabilities............................................................ | 9,576,000 | ||||
| Total liabilities............................................................. | 438,249,000 | ||||
| EQUITY CAPITAL | |||||
Perpetual preferred stock and related surplus…………………………….................………. | 0 | ||||
| Common stock............................................................. | 1,135,000 | ||||
| Surplus (exclude all surplus related to preferred stock)........................................................................... | 13,112,000 | ||||
| Retained earnings........................................................ | 16,871,000 | ||||
| Accumulated other comprehensive income…....…… | -2,018,000 | ||||
| Other equity capital components……….....………… | 0 | ||||
| Total bank equity capital............................................. | 29,100,000 | ||||
Noncontrolling (minority) interests in consolidated subsidiaries ………….....…………… | 0 | ||||
| Total equity capital...................................................... | 29,100,000 | ||||
| Total liabilities and equity capital............................... | 467,349,000 | ||||
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I, Dermot McDonogh, 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.
Dermot McDonogh
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.
| Robin A. Vince | |||||
| Jeffrey A. Goldstein | Directors | ||||
| Joseph J. Echevarria | |||||
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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 (Jurisdiction of incorporation if not a U.S. national bank) | 13-5160382 (I.R.S. employer identification no.) | ||||
| 240 Greenwich Street, New York, N.Y. (Address of principal executive offices) | 10286 (Zip code) | ||||
Stellantis Finance US Inc.
(Exact name of obligor as specified in its charter)
| Delaware (State or other jurisdiction of incorporation or organization) | 61-1818372 (I.R.S. employer identification no.) | ||||
| 1000 Chrysler Drive Auburn Hills, Michigan U.S.A. (Address of principal executive offices) | 48326 (Zip code) | ||||
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Stellantis N.V.
(Exact name of obligor as specified in its charter)
| The Netherlands (State or other jurisdiction of incorporation or organization) | Not Applicable (I.R.S. employer identification no.) | ||||
| Taurusavenue 1 2132 LS Hoofddorp The Netherlands (Address of principal executive offices) | (Zip code) | ||||
Debt Securities
and Guarantees of Debt Securities
(Title of the indenture securities)
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
-2-
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 | 550 17th Street, NW Washington, D.C. 204 | ||||
| The Clearing House Association L.L.C. | 100 Broad Street New York, N.Y. 10004 | ||||
(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.
16. List of Exhibits.
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").
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. 333-261533).
-3-
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. 333-229519).
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.
-4-
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 Houston, and State of Texas, on the 21st day of July, 2026.
THE BANK OF NEW YORK MELLON
By: /s/ Peggy Guel
Name: Peggy Guel
Title: As Agent
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Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK MELLON
of 240 Greenwich Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business March 31, 2026, published in accordance with a call made by the Federal Reserve Bank of this District pursuant to the provisions of the Federal Reserve Act.
| ASSETS | Dollar amounts in thousands | ||||
Cash and balances due from depository institutions: Noninterest-bearing balances and currency and | |||||
| coin........................................................................... | 5,151,000 | ||||
| Interest-bearing balances.......................................... | 179,331,000 | ||||
| Securities: | |||||
| Held-to-maturity securities...................................... | 48,830,000 | ||||
| Available-for-sale debt securities................................ | 106,552,000 | ||||
Equity securities with readily determinable fair values not held for trading…………….................. | 0 | ||||
Federal funds sold and securities purchased under agreements to resell: | |||||
| Federal funds sold in domestic offices..................... | 0 | ||||
Securities purchased under agreements to resell...... | 24,813,000 | ||||
Loans and lease financing receivables: Loans and leases held for sale………….............…. | 0 | ||||
| Loans and leases held for investment……….......... | 60,448,000 | ||||
| LESS: Allowance for credit losses on loans and leases………............................................ | 211,000 | ||||
| Loans and leases held for investment, net of allowance................................................................. | 60,237,000 | ||||
Trading assets.............................................................. | 8,224,000 | ||||
| Premises and fixed assets (including right-of-use assets)........................................................................ | 3,478,000 | ||||
| Other real estate owned............................................... | 0 | ||||
Investments in unconsolidated subsidiaries and associated companies............................................... | 2,481,000 | ||||
Direct and indirect investments in real estate ventures ……………………..……………………. | 0 | ||||
| Intangible assets…………………….....……………. | 7,343,000 | ||||
| Other assets................................................................. | 20,909,000 | ||||
| Total assets.................................................................. | 467,349,000 | ||||
-6-
| LIABILITIES | |||||
Deposits: | |||||
| In domestic offices................................................... | 302,628,000 | ||||
| Noninterest-bearing.................................................. | 124,486,000 | ||||
| Interest-bearing........................................................ | 178,142,000 | ||||
In foreign offices, Edge and Agreement subsidiaries, and IBFs........................................... | 117,096,000 | ||||
| Noninterest-bearing.................................................. | 10,404,000 | ||||
| Interest-bearing........................................................ | 106,692,000 | ||||
Equity securities with readily determinable fair values not held for trading…......…………............ | 0 | ||||
Federal funds sold and securities purchased under agreements to repurchase: Federal funds sold in domestic offices.................... | 0 | ||||
| Federal funds purchased in domestic offices.............. | 0 | ||||
| Securities sold under agreements to repurchase.................................................................... | 2,787,000 | ||||
| Trading liabilities........................................................ | 2,480,000 | ||||
Other borrowed money: (includes mortgage indebtedness)…...................…. | 3,682,000 | ||||
| Not applicable | |||||
| Not applicable | |||||
Subordinated notes and debentures ................................................................... | 0 | ||||
| Other liabilities............................................................ | 9,576,000 | ||||
| Total liabilities............................................................. | 438,249,000 | ||||
| EQUITY CAPITAL | |||||
Perpetual preferred stock and related surplus…………………………….................………. | 0 | ||||
| Common stock............................................................. | 1,135,000 | ||||
| Surplus (exclude all surplus related to preferred stock)........................................................................... | 13,112,000 | ||||
| Retained earnings........................................................ | 16,871,000 | ||||
| Accumulated other comprehensive income…....…… | -2,018,000 | ||||
| Other equity capital components……….....………… | 0 | ||||
| Total bank equity capital............................................. | 29,100,000 | ||||
Noncontrolling (minority) interests in consolidated subsidiaries ………….....…………… | 0 | ||||
| Total equity capital...................................................... | 29,100,000 | ||||
| Total liabilities and equity capital............................... | 467,349,000 | ||||
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I, Dermot McDonogh, 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.
Dermot McDonogh
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.
| Robin A. Vince | |||||
| Jeffrey A. Goldstein | Directors | ||||
| Joseph J. Echevarria | |||||
-8-