UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 15, 2016
Delphi Automotive PLC
(Exact name of registrant as specified in its charter)
Jersey | 001-35346 | 98-1029562 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
Courteney Road
Hoath Way
Gillingham, Kent ME8 0RU
United Kingdom
(Address of Principal Executive Offices)(Zip Code)
(Registrants Telephone Number, Including Area Code) 011-44-163-423-4422
(Former Name or Former Address, if Changed Since Last Report) N/A
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):
¨ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. | Entry into a Material Definitive Agreement. |
Pursuant to the previously announced offering of 500,000,000 aggregate principal amount of 1.600% Senior Notes due 2028 (the Notes) to be issued by Delphi Automotive PLC (the Issuer), the Issuer, certain Guarantors (as defined below), Wilmington Trust, National Association, as trustee, and Deutsche Bank Trust Company Americas, as registrar, paying agent and authenticating agent, entered into a third supplemental indenture, dated as of September 15, 2016 (the Supplemental Indenture) to the Senior Notes Indenture dated as of March 10, 2015 (as previously amended, supplemented or otherwise modified from time to time, the Base Indenture and together with the Supplemental Indenture, the Indenture), providing for the issuance of the Notes. The Notes will be fully and unconditionally guaranteed on a senior unsecured basis (the Guarantees and, together with the Notes, the Securities) by certain of the Issuers subsidiaries (collectively, the Guarantors).
The Notes will bear interest at a fixed rate of 1.600% per annum, and interest will be payable on September 15 of each year, beginning September 15, 2017, until the maturity date of September 15, 2028. The Issuer may redeem the Notes at such times and at the redemption prices as provided for in the Indenture. The Indenture also contains certain covenants as set forth in the Indenture and requires the Issuer to offer to repurchase the Notes upon certain change of control events.
The Base Indenture and the Supplemental Indenture (including the form of Notes) are filed as Exhibits 4.1 and 4.2 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
Item 8.01 | Other Events. |
The above-mentioned offering was made pursuant to an effective shelf registration statement on Form S-3 (File No. 333-207700) filed by the Issuer and the Guarantors. The Underwriting Agreement, dated as of August 31, 2016, by and among the Issuer, the Guarantors and the underwriters named therein, is filed as Exhibit 1.1 to this Current Report on Form 8-K. Opinions of counsel for the Issuer and the Guarantors are filed as Exhibits 5.1, 5.2 and 5.3 to this Current Report on Form 8-K, respectively.
Item 9.01 | Financial Statements and Exhibits. |
(d) | Exhibits. |
1.1 | Underwriting Agreement, dated as of August 31, 2016 by and among Delphi Automotive PLC, the guarantors named therein and the underwriters named therein. | |
4.1 | Senior Notes Indenture, dated as of March 10, 2015, among Delphi Automotive PLC, the guarantors named therein, Wilmington Trust, National Association, as Trustee and Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent (incorporated by reference to the Current Report on Form 8-K filed on March 10, 2015). | |
4.2 | Third Supplemental Indenture, dated as of September 15, 2016, among Delphi Automotive PLC, the guarantors named therein, Wilmington Trust, National Association, as Trustee and Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent. | |
5.1 | Opinion of Davis Polk & Wardwell LLP with respect to the Securities. | |
5.2 | Opinion of Carey Olsen with respect to certain matters of Jersey law. | |
5.3 | Opinion of Davis Polk & Wardwell London LLP with respect to certain matters of English law. | |
23.1 | Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1). | |
23.2 | Consent of Carey Olsen (included in Exhibit 5.2). | |
23.3 | Consent of Davis Polk & Wardwell London LLP (included in Exhibit 5.3). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Date: | September 15, 2016 | DELPHI AUTOMOTIVE PLC | ||||||
By: | /s/ David M. Sherbin | |||||||
David M. Sherbin | ||||||||
Senior Vice President, General Counsel, Secretary and Chief Compliance Officer |
EXHIBIT INDEX
Exhibit |
Description | |
1.1 | Underwriting Agreement, dated as of August 31, 2016 by and among Delphi Automotive PLC, the guarantors named therein and the underwriters named therein. | |
4.1 | Senior Notes Indenture, dated as of March 10, 2015, among Delphi Automotive PLC, the guarantors named therein, Wilmington Trust, National Association, as Trustee and Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent (incorporated by reference to the Current Report on Form 8-K filed on March 10, 2015). | |
4.2 | Third Supplemental Indenture, dated as of September 15, 2016, among Delphi Automotive PLC, the guarantors named therein, Wilmington Trust, National Association, as Trustee and Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent. | |
5.1 | Opinion of Davis Polk & Wardwell LLP with respect to the Securities. | |
5.2 | Opinion of Carey Olsen with respect to certain matters of Jersey law. | |
5.3 | Opinion of Davis Polk & Wardwell London LLP with respect to certain matters of English law. | |
23.1 | Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1). | |
23.2 | Consent of Carey Olsen (included in Exhibit 5.2). | |
23.3 | Consent of Davis Polk & Wardwell London LLP (included in Exhibit 5.3). |
Exhibit 1.1
EXECUTION VERSION
500,000,000
DELPHI AUTOMOTIVE PLC
1.600% Senior Notes due 2028
Underwriting Agreement
August 31, 2016
Barclays Bank PLC
Deutsche Bank AG, London Branch
J.P. Morgan Securities plc
BNP Paribas
Morgan Stanley & Co. LLC
SMBC Nikko Capital Markets Limited
Société Générale
TD Securities (USA) LLC
UniCredit Bank AG
Wells Fargo Securities International Limited
c/o Barclays Bank PLC
5 The North Colonnade
Canary Wharf
London
E14 4BB
United Kingdom
c/o Deutsche Bank AG, London Branch
Winchester House
1 Great Winchester Street
London
EC2N 2DB
United Kingdom
c/o J.P. Morgan Securities plc
25 Bank Street
Canary Wharf
London
E14 5JP
United Kingdom
Ladies and Gentlemen:
Delphi Automotive PLC, a Jersey public limited company (the Issuer), proposes to issue and sell to the several Underwriters listed in Schedule 1 hereto (the Underwriters), for
whom Barclays Bank PLC, Deutsche Bank AG, London Branch and J.P. Morgan Securities plc are acting as representatives (the Representatives), 500,000,000 aggregate principal amount of its 1.600% Senior Notes due 2028 (the Securities). The Securities will be issued pursuant to the indenture dated as of March 10, 2015 (the Base Indenture) among the Issuer, Delphi Corporation, a Delaware corporation (Delphi Corp), the other guarantors listed in Schedule 2 hereto (together with Delphi Corp, the Guarantors), Wilmington Trust, National Association, as trustee (the Trustee), and Deutsche Bank Trust Company Americas, as registrar, paying agent and authenticating agent (the Agent), as amended and supplemented by a supplemental indenture to be dated as of the Closing Date (as defined below) (the Third Supplemental Indenture and together with the Base Indenture, the Indenture), and will be guaranteed on an unsecured senior basis by each of the Guarantors (the Guarantees).
The Issuer and the Guarantors hereby confirm their agreement with the several Underwriters concerning the purchase and sale of the Securities, as follows:
1. Registration Statement. The Issuer has prepared and filed with the Securities and Exchange Commission (the Commission) under the Securities Act of 1933, as amended, and the rules and regulations of the Commission thereunder (collectively, the Securities Act), a registration statement on Form S-3ASR (File No. 333-207700), including a prospectus, relating to the Securities. Such registration statement, as amended at the time it becomes effective, including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities Act to be part of the registration statement at the time of its effectiveness (Rule 430 Information), insofar as it relates to the issuance and sale of the Securities, is referred to herein as the Registration Statement; and as used herein, the term Preliminary Prospectus means the prospectus included in such registration statement (and any amendments thereto) at the time it became effective, and any prospectus relating to the Securities filed with the Commission pursuant to Rule 424(a) under the Securities Act, and the term Prospectus means the prospectus in the form first used (or made available upon request of purchasers pursuant to Rule 173 under the Securities Act) in connection with confirmation of sales of the Securities. Any reference in this Underwriting Agreement (this Agreement) to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of such Preliminary Prospectus or the Prospectus, as the case may be and any reference to amend, amendment or supplement with respect to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission thereunder (collectively, the Exchange Act) that are deemed to be incorporated by reference therein. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made (the Time of Sale), the Issuer had prepared the following information (collectively, the Time of Sale Information): a Preliminary Prospectus dated August 31, 2016 (including the base prospectus included therein), and each free writing prospectus (as defined pursuant to Rule 405 under the Securities Act) listed on Annex A hereto.
-2-
The Issuer intends to use the proceeds of the offering of the Securities to redeem Delphi Corps 5.00% Senior Notes due 2023 (the Existing Notes) issued pursuant to the indenture dated February 14, 2013, by and among Delphi Corp, the Issuer, as a guarantor, the other guarantors party thereto, Wilmington Trust Company and Deutsche Bank Trust Company Americas, and for general corporate purposes and to pay related fees and expenses. The issuance and sale of the Securities and the use of proceeds therefrom (other than for general corporate purposes) are referred to herein as the Transactions.
2. Purchase and Resale of the Securities by the Underwriters; Reimbursement of Issuer Expenses.
(a) The Issuer agrees to issue and sell the Securities to the several Underwriters as provided in this Agreement, and each Underwriter, on the basis of the representations, warranties and agreements set forth herein and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from the Issuer the respective principal amount of the Securities set forth opposite such Underwriters name in Schedule 1 hereto at a price equal to 99.381% of the principal amount thereof, plus accrued interest, if any, from September 15, 2016 to the Closing Date. The Issuer will not be obligated to deliver any of the Securities except upon payment for all the Securities to be purchased as provided herein.
(b) The Issuer understands that the Underwriters intend to make a public offering of the Securities as soon after the effectiveness of this Agreement as in the judgment of the Underwriters is advisable, and to initially offer the Securities on the terms set forth in the Time of Sale Information. The Issuer acknowledges and agrees that the Underwriters may offer and sell Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and sell Securities purchased by it to or through any Underwriter.
(c) Payment for and delivery of the Securities will be made on or about 10:00 A.M., London time, on September 15, 2016, or at such other time on the same or such other date, not later than the fifth business day thereafter, as the Representatives and the Issuer may agree upon in writing. The time and date of such payment and delivery is referred to herein as the Closing Date.
(d) Payment for the Securities shall be made by wire transfer in immediately available funds to the account(s) specified by the Issuer to the Representatives against delivery in book entry form through a common depository (the Common Depository) for Euroclear Bank S.A./N.V. (Euroclear) and Clearstream Banking, société anonyme (Clearstream), for the account of the Underwriters, of one or more global notes representing the Securities (collectively, the Global Notes), with any transfer taxes payable in connection with the sale of the Securities duly paid by the Issuer. The Global Notes will be made available for inspection by the Representatives not later than 10:00 A.M., New York City time, on the business day prior to the Closing Date.
(e) The Issuer and the Guarantors acknowledge and agree that each Underwriter is acting solely in the capacity of an arms length contractual counterparty to the Issuer and the Guarantors with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a
-3-
fiduciary to, or an agent of, the Issuer, the Guarantors or any other person. Additionally, no Underwriter is advising the Issuer, the Guarantors or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Issuer and the Guarantors shall consult with their own advisors concerning such matters and shall be responsible for making their own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Issuer or the Guarantors with respect thereto. Any review by any Underwriter of the Issuer, the Guarantors, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Underwriter and shall not be on behalf of the Issuer or the Guarantors or any other person.
(f) If the Closing Date occurs, the Representatives shall reimburse the Issuer for its actual, out-of-pocket expenses in connection with the offering of the Securities, within 90 days after the Closing Date, in an aggregate amount not to exceed 106,250 less certain syndication expenses as mutually agreed to by the Company and the Representatives.
3. Representations and Warranties of the Issuer and the Guarantors. The Issuer and the Guarantors jointly and severally represent and warrant to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary Prospectus has been issued by the Commission, and each Preliminary Prospectus, at the time of filing thereof, complied in all material respects with the Securities Act and did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter expressly for use in any Preliminary Prospectus.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date, will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter expressly for use in the Preliminary Prospectus, the Time of Sale Information or the Prospectus.
(c) Issuer Free Writing Prospectus. The Issuer and the Guarantors (including their agents and representatives, other than the Underwriters in their capacity as such) have not prepared, made, used, authorized, approved or referred to and will not prepare, make, use, authorize, approve or refer to any written communication (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell or solicitation of an offer to buy the Securities (each such communication by the Issuer or the Guarantors or
-4-
their agents and representatives (other than a communication referred to in clauses (i), (ii) and (iii) below) an Issuer Free Writing Prospectus) other than (i) any document not constituting a prospectus pursuant to Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act, (ii) the Preliminary Prospectus, (iii) the Prospectus, (iv) the documents listed on Annex A hereto as constituting part of the Time of Sale Information and (v) any electronic road show or other written communications, in each case approved by the Representatives. Each such Issuer Free Writing Prospectus complies in all material respects with the Securities Act, if required, has been or will be (within the time period specified in Rule 433) filed in accordance with the Securities Act (to the extent required thereby) and, when taken together with the Preliminary Prospectus, such Issuer Free Writing Prospectus, did not at the Time of Sale, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer and the Guarantors in writing by such Underwriter expressly for use in any Issuer Free Writing Prospectus.
(d) Registration Statement and Prospectus. The Registration Statement is an automatic shelf registration statement as defined under Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the date hereof; and no notice of objection of the Commission to the use of such registration statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act has been received by the Issuer. No order suspending the effectiveness of the Registration Statement has been issued by the Commission and no proceeding for that purpose or pursuant to Section 8A of the Securities Act against the Issuer or related to the offering has been initiated or threatened by the Commission; as of the applicable effective date of the Registration Statement and any amendment thereto, the Registration Statement complied and will comply in all material respects with the Securities Act and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission thereunder (collectively, the Trust Indenture Act), and did not and will not contain any untrue statement of a material fact or omit to state a material fact or necessary in order to make the statements therein not misleading; and as of the date of the Prospectus and any amendment or supplement thereto and as of the Closing Date, the Prospectus will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that the Issuer and the Guarantors make no representation or warranty with respect to (i) that part of the Registration Statement that constitutes the Statement of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii) any statements or omissions made in reliance upon and in conformity with information relating to any Underwriter furnished to the Issuer in writing by such Underwriter expressly for use in the Registration Statement and the Prospectus and any amendment or supplement thereto.
-5-
(e) Incorporated Documents. The documents incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information, when they were filed with the Commission conformed in all material respects to the requirements of the Exchange Act, and none of such documents contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; and any further documents so filed and incorporated by reference in the Registration Statement, the Prospectus or the Time of Sale Information prior to the Closing Date, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and will not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(f) Financial Statements. The financial statements and the related notes thereto included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus comply in all material respects with the applicable requirements of the Securities Act and the Exchange Act, as applicable, and present fairly the financial position of the Issuer and its subsidiaries as of the dates indicated and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have been prepared in conformity with generally accepted accounting principles applied on a consistent basis throughout the periods covered thereby, and the supporting schedules included or incorporated by reference in each of the Registration Statement, the Prospectus and the Time of Sale Information present fairly the information required to be stated therein; and the other financial information included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus has been derived from the accounting records of the Issuer and its subsidiaries and presents fairly in all material respects the information shown thereby. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information fairly presents the information called for in all material respects and is prepared in accordance with the Commissions rules and guidelines applicable thereto.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the Issuer included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus, except as disclosed in the Time of Sale Information, (i) there has not been any change in the capital stock or long-term debt of the Issuer or any of its significant subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or made by the Issuer on any class of capital stock, or any material adverse change, or any development involving a prospective material adverse change, in or affecting the business, properties, management, financial position or results of operations of the Issuer and its subsidiaries taken as a whole; (ii) neither the Issuer nor any of its subsidiaries has entered into any transaction or agreement that is material to the Issuer and its subsidiaries taken as a whole
-6-
or incurred any liability or obligation, direct or contingent, that is material to the Issuer and its subsidiaries taken as a whole; and (iii) neither the Issuer nor any of its subsidiaries has sustained any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any action, order or decree of any court or arbitrator or governmental or regulatory authority, except in each case as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(h) Organization and Good Standing. The Issuer and each of its significant subsidiaries have been duly organized and are validly existing and in good standing under the laws of their respective jurisdictions of organization, are duly qualified to do business and are in good standing in each jurisdiction in which their respective ownership or lease of property or the conduct of their respective businesses requires such qualification, and have all power and authority necessary to own or hold their respective properties and to conduct the businesses in which they are engaged, except where the failure to be so qualified, in good standing or have such power or authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the business, properties, management, financial position, results of operations or prospects of the Issuer and its subsidiaries taken as a whole or on the performance by the Issuer and the Guarantors of their obligations under this Agreement, the Securities and the Guarantees (a Material Adverse Effect). The Issuer does not own or control, directly or indirectly, any corporation, association or other entity other than the subsidiaries listed in Exhibit 21 to the Registration Statement, except for entities that have been omitted pursuant to Item 601(b)(21) of Regulation S-K. The subsidiaries listed in Schedule 3 to this Agreement are the only significant subsidiaries of the Issuer.
(i) Capitalization. All the outstanding shares of capital stock or other equity interests of each subsidiary of the Issuer have been duly and validly authorized and issued, are fully paid and non-assessable (except, in the case of any foreign subsidiary, for directors qualifying shares) and are owned directly or indirectly by the Issuer, free and clear of any lien, charge, encumbrance, security interest, restriction on voting or transfer or any other claim of any third party (collectively, Liens), other than as described in the Time of Sale Information and the Prospectus, or as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(j) Due Authorization. The Issuer and each of the Guarantors have full right, power and authority to execute and deliver this Agreement, the Securities and the Indenture (including each Guarantee set forth therein) (collectively, the Transaction Documents) and to perform their respective obligations hereunder and thereunder; and all action required to be taken for the due and proper authorization, execution and delivery of each of the Transaction Documents and the consummation of the transactions contemplated thereby has been duly and validly taken.
(k) The Indenture. The Indenture has been duly authorized by the Issuer and each of the Guarantors and upon effectiveness of the Registration Statement was duly
-7-
qualified under the Trust Indenture Act and, when duly executed and delivered in accordance with its terms by each of the parties thereto, will constitute a valid and legally binding agreement of the Issuer and each of the Guarantors enforceable against the Issuer and each of the Guarantors in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting the enforcement of creditors rights generally or by equitable principles relating to enforceability (collectively, the Enforceability Exceptions).
(l) The Securities and the Guarantees. The Securities have been duly authorized by the Issuer and, when duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be duly and validly issued and outstanding and will constitute valid and legally binding obligations of the Issuer enforceable against the Issuer in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture; and the Guarantees have been duly authorized by each of the Guarantors and, when the Securities have been duly executed, authenticated, issued and delivered as provided in the Indenture and paid for as provided herein, will be valid and legally binding obligations of each of the Guarantors, enforceable against each of the Guarantors in accordance with their terms, subject to the Enforceability Exceptions, and will be entitled to the benefits of the Indenture.
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered by the Issuer and each of the Guarantors.
(n) Descriptions of the Transaction Documents. Each Transaction Document conforms in all material respects to the description thereof contained in each of the Registration Statement, the Time of Sale Information and the Prospectus.
(o) No Violation or Default. Neither (i) the Issuer nor any of its significant subsidiaries is in violation of its charter or by-laws or similar organizational documents; (ii) the Issuer nor any of its subsidiaries is in default, and no event has occurred that, with notice or lapse of time or both, would constitute such a default, in the due performance or observance of any term, covenant or condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject; or (iii) the Issuer nor any of its subsidiaries is in violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or violation that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(p) No Conflicts. The execution, delivery and performance by the Issuer and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities, the issuance of the Guarantees and compliance by the Issuer and each of the Guarantors with the terms thereof and the consummation of the
-8-
transactions contemplated by the Transaction Documents will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Issuer or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Issuer or any of its subsidiaries is a party or by which the Issuer or any of its subsidiaries is bound or to which any of the property or assets of the Issuer or any of its subsidiaries is subject, (ii) result in any violation of the provisions of the charter or by-laws or similar organizational documents of the Issuer or any of its subsidiaries or (iii) result in the violation of any law or statute or any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority, except, in the case of clauses (i) and (iii) above, for any such conflict, breach, violation, default, lien, charge or encumbrance that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(q) No Consents Required. No consent, approval, authorization, order, registration or qualification of or with any court or arbitrator or governmental or regulatory authority is required for the execution, delivery and performance by the Issuer and each of the Guarantors of each of the Transaction Documents to which each is a party, the issuance and sale of the Securities (including the Guarantees) and compliance by the Issuer and each of the Guarantors with the terms thereof and the consummation of the transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders and registrations or qualifications as may be required under applicable state securities laws in connection with the purchase and resale of the Securities by the Underwriters.
(r) Legal Proceedings. Except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no legal, governmental or regulatory investigations, actions, suits or proceedings (Actions) pending to which the Issuer or any of its subsidiaries is or, to the knowledge of the Issuer and the Guarantors, would reasonably be expected to be, a party or to which any property or assets of the Issuer or any of its subsidiaries is subject that, individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect; and to the knowledge of the Issuer and the Guarantors no such Actions are threatened or contemplated by any governmental or regulatory authority or by others.
(s) Independent Accountants. Ernst & Young LLP, who have certified certain financial statements of the Issuer and its subsidiaries are independent public accountants with respect to the Issuer and its subsidiaries within the applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United States) and as required by the Securities Act.
(t) Title to Intellectual Property. (i) The Issuer and its subsidiaries own or possess adequate rights to use all patents, patent applications, trademarks, service marks, trade names, trademark registrations, service mark registrations, copyrights, licenses and know-how (including trade secrets and other unpatented and/or unpatentable proprietary
-9-
or confidential information, systems or procedures) necessary for the conduct of their respective businesses; and (ii) the conduct of their respective businesses will not conflict with any such rights of others, and the Issuer and its subsidiaries have not received any notice of any claim of infringement of or conflict with any such rights of others, except in the case of each of clauses (i) and (ii) as would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(u) Investment Company Act. Neither the Issuer nor any Guarantor is, or after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in each of the Registration Statement, the Time of Sale Information and the Prospectus will be, an investment company or an entity controlled by an investment company within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder (collectively, the Investment Company Act).
(v) Taxes. The Issuer and each of its subsidiaries have timely paid all material U.S. federal, state, local and non-U.S. taxes (including any interest and related penalties) and filed all material tax returns required to be filed by them (including as a withholding agent) through the date hereof; and except as otherwise disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there is no material tax deficiency that has been, or could reasonably be expected to be, asserted against the Issuer or any of its significant subsidiaries or any of their respective properties or assets.
(w) Licenses and Permits. The Issuer and its subsidiaries possess all licenses, certificates, permits and other authorizations issued by, and have made all declarations and filings with, the appropriate federal, state, local or foreign governmental or regulatory authorities that are necessary for the ownership or lease of their respective properties or the conduct of their respective businesses as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, except where the failure to possess or make the same would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and except as described in each of the Registration Statement, the Time of Sale Information and the Prospectus, neither the Issuer nor any of its subsidiaries has received notice of any revocation or modification of any such license, certificate, permit or authorization or has any reason to believe that any such license, certificate, permit or authorization will not be renewed in the ordinary course, except where such revocation, modification or non-renewal would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(x) No Labor Disputes. No labor disturbance by or dispute with employees of the Issuer or any of its subsidiaries exists or, to the knowledge of the Issuer and each of the Guarantors, is contemplated or threatened and neither the Issuer nor any Guarantor is aware of any existing or imminent labor disturbance by, or dispute with, the employees of any of the Issuers or any of the Issuers subsidiaries principal suppliers, contractors or customers, except as would not reasonably be expected to have a Material Adverse Effect.
-10-
(y) Compliance with Environmental Laws. (i) The Issuer and its subsidiaries (x) are, and at all prior times were, in compliance with any and all applicable federal, state, local and foreign laws, rules, regulations, requirements, decisions and orders relating to the protection of human health or safety as such relates to exposure to hazardous or toxic substances, wastes, pollutants or contaminants, the environment, natural resources, or the release, discharge, storage, treatment, generation, use, transportation, recycling or disposal of hazardous or toxic substances or wastes, pollutants or contaminants (collectively, Environmental Laws), (y) have received and are in compliance with all permits, licenses, certificates or other authorizations or approvals required of them under applicable Environmental Laws to conduct their respective businesses, and (z) have not received notice of any actual or potential liability under or relating to any Environmental Laws, including for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, and have no knowledge of any event or condition that would reasonably be expected to result in any such notice, and (ii) there are no costs or liabilities associated with Environmental Laws of or relating to the Issuer or its subsidiaries, except in the case of each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits, licenses or approvals, or cost or liability (whether accrued, contingent, fixed, determinable, determined or otherwise), as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; and (iii) except as described in each of the Time of Sale Information and the Prospectus or except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (x) there are no proceedings that are pending, or that are known to be contemplated, against the Issuer or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a party and (y) the Issuer and its subsidiaries are not aware of any issues regarding compliance with Environmental Laws, or liabilities or other obligations under Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or contaminants.
(z) Disclosure Controls. The Issuer maintains an effective system of disclosure controls and procedures (as defined in Rule 13a-15(e) of the Exchange Act) that is designed to ensure that information required to be disclosed by the Issuer in reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commissions rules and forms, including controls and procedures designed to ensure that such information is accumulated and communicated to the Issuers management as appropriate to allow timely decisions regarding required disclosure. The Issuer has carried out evaluations of the effectiveness of its disclosure controls and procedures as required by Rule 13a-15 of the Exchange Act.
(aa) Accounting Controls. The Issuer maintains a system of internal control over financial reporting (as defined in Rule 13a-15(f) of the Exchange Act) that complies with the requirements of the Exchange Act and maintained under the
-11-
supervision of the principal executive and principal financial officers of the Issuer, or persons performing similar functions, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. The Issuer maintains internal controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with managements general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with managements general or specific authorization; (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and (v) interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement, the Prospectus and the Time of Sale Information is prepared in accordance with the Commissions rules and guidelines applicable thereto. Except as disclosed in each of the Registration Statement, the Time of Sale Information and the Prospectus, there are no material weaknesses in the Issuers internal controls.
(bb) Insurance. The Issuer and its subsidiaries have insurance covering their respective properties, operations, personnel and businesses, including business interruption insurance, which insurance is in amounts and insures against such losses and risks as the Issuer believes are adequate to protect the Issuer and its subsidiaries and their respective businesses; and neither the Issuer nor any of its subsidiaries has (i) received notice from any insurer or agent of such insurer that capital improvements or other expenditures are required or necessary to be made in order to continue such insurance or (ii) any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage at reasonable cost from similar insurers as may be necessary to continue its business, except in the cases referenced in (i) and (ii) as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(cc) No Unlawful Payments. Neither the Issuer nor any of its subsidiaries nor, to the knowledge of the Issuer and the Guarantors, any director, officer, agent, employee or other person associated with or acting on behalf of the Issuer or any of its subsidiaries has (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) violated or is in violation of any provision of the Foreign Corrupt Practices Act of 1977; (iv) violated or is in violation of any provision of the Bribery Act 2010 of the United Kingdom; or (v) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; except as disclosed in the Time of Sale Information.
(dd) Compliance with Money Laundering Laws. The operations of the Issuer and its subsidiaries are and have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes
-12-
of all jurisdictions, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the Money Laundering Laws) and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Issuer or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Issuer and each of the Guarantors, threatened.
(ee) No Conflicts with Sanctions Laws. None of the Issuer, the Guarantors, any of its subsidiaries or, to the knowledge of the Issuer and each of the Guarantors, any director, officer, agent, employee or affiliate of the Issuer, the Guarantors or any of its subsidiaries is (i) currently the subject or the target of any sanctions administered or enforced by the U.S. Government, including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury (OFAC), the United Nations Security Council (UNSC), the European Union, Her Majestys Treasury (HMT), or other relevant sanctions authority (collectively, Sanctions) or (ii) owned 50% or more by or otherwise controlled by or acting on behalf of one or more persons or entities that are the subject to Sanctions, nor is the Issuer or any of the Guarantors located, organized or resident in a country or territory that is the subject of Sanctions (including but not limited to Cuba, Iran, Sudan, Syria, North Korea and the Crimean Region, each a Sanctioned Country), and the Issuer or the Guarantors will not directly or indirectly use the proceeds of the offering of the Securities hereunder, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other person or entity (i) for the purpose of any activities of or business with any person, or in any country or territory, that, at the time of such use, is the subject of Sanctions or (ii) in any other manner that would reasonably be expected, by the Issuer, to result in a violation by any person participating in the transaction, whether as Underwriter, advisor, investor or otherwise, of Sanctions. With regard to Deutsche Bank and UniCredit Bank AG, this representation and warranty shall apply only and if to the extent that it does not result in a violation of Council Regulation (EC) No. 2271/96 of 22 November 1996 or any applicable anti-boycott laws or regulation.
(ff) No Stabilization. Neither the Issuer nor any of the Guarantors has taken, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(gg) Margin Rules. Neither the issuance, sale and delivery of the Securities nor the application of the proceeds thereof by the Issuer as described in each of the Registration Statement, the Time of Sale Information and the Prospectus will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System or any other regulation of such Board of Governors.
(hh) Forward-Looking Statements. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained or incorporated by reference in any of the Registration Statement, the Time of Sale Information or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.
-13-
(ii) Statistical and Market Data. Nothing has come to the attention of the Issuer or the Guarantor that has caused the Issuer or any Guarantor to believe that the statistical and market-related data included or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived from sources that are reliable and accurate in all material respects.
(jj) Sarbanes-Oxley Act. There is and has been no failure on the part of the Issuer or any of the Issuers directors or officers, in their capacities as such, to comply with any provision of the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated in connection therewith (the Sarbanes-Oxley Act), including Section 402 related to loans and Sections 302 and 906 related to certifications.
(kk) Status under the Securities Act. The Issuer is not an ineligible issuer and is a well-known seasoned issuer, in each case as defined under the Securities Act, in each case at the times specified in the Securities Act in connection with the offering of the Securities.
(ll) Stamp Duties. No stamp duties or other issuance or transfer taxes or duties or other similar fees or charges are required to be paid by the Underwriters in connection with the execution and delivery of the Transaction Documents or the issuance or sale by the Issuer of the Securities.
(mm) Exchange Listings. The Issuer has not made any application, or affirmatively consented to the making of any application, to list any of its securities for trading on any securities exchange other than the New York Stock Exchange (the NYSE).
(nn) Anti-Bribery and Corruption. To the best of the Issuers knowledge and belief, no actions or investigations by any governmental or regulatory agency are ongoing or threatened against the Issuer or its subsidiaries, or any of their directors, officers or employees or anyone acting on their behalf in relation to an alleged breach of all applicable anti-bribery and corruption laws and regulations including but not limited to the US Foreign and Corrupt Practices Act 1977 and the UK Bribery Act 2010 (such laws and regulations, the Anti-Bribery and Corruption Laws).
(oo) Compliance Procedures. The Issuer and its subsidiaries have instituted and will maintain and enforce, policies and procedures designed to ensure compliance by the Issuer with the Anti-Bribery and Corruption Laws.
4. Further Agreements of the Issuer and the Guarantors. The Issuer and each of the Guarantors jointly and severally covenant and agree with each Underwriter that:
(a) Required Filings. The Issuer and the Guarantors will file the Prospectus with the Commission within the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act and will file any Issuer Free Writing Prospectus (including the Pricing Term Sheet referred to in Annex A hereto) to the extent required by Rule 433 under the Securities Act; the Issuer will file promptly all reports and any
-14-
definitive proxy or information statements required to be filed by the Issuer with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of the Prospectus and for so long as the delivery of a prospectus is required in connection with the offering or sale of the Securities; and the Issuer will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York City time, on the business day next succeeding the date of this Agreement in such quantities as the Underwriters may reasonably request. The Issuer will pay the registration fees for this offering within the time period required by Rule 456(b)(1)(i) under the Securities Act (without giving effect to the proviso therein) and in any event prior to the Closing Date.
(b) Delivery of Copies. The Issuer will deliver, without charge, (i) to each Representative, two signed copies of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and documents incorporated by reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement as originally filed and each amendment thereto, in each case including all exhibits and consents filed therewith and (B) during the Prospectus Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and supplements thereto and documents incorporated by reference therein) as the Underwriters may reasonably request. As used herein, the term Prospectus Delivery Period means such period of time after the first date of the public offering of the Securities and prior to nine months after the Closing Date a prospectus relating to the Securities is required by law to be delivered (or required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the Securities by any Underwriter or dealer.
(c) Amendments or Supplements; Issuer Free Writing Prospectuses. Before making, preparing, using, authorizing, approving, referring to or filing any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the Registration Statement or the Prospectus, whether before or after the time that the Registration Statement becomes effective the Issuer will furnish to the Representatives and counsel for the Underwriters a copy of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not make, prepare, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any such proposed amendment or supplement to which the Representatives reasonably object.
(d) Notice to the Representatives. The Issuer will advise the Representatives promptly, and confirm such advice in writing, (i) when any amendment to the Registration Statement has been filed or becomes effective; (ii) when any supplement to the Prospectus or any amendment to the Prospectus or any Issuer Free Writing Prospectus has been filed; (iii) of any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or the receipt of any comments from the Commission relating to the Registration Statement or any other request by the Commission for any additional information; (iv) of the issuance by the Commission of any order suspending the effectiveness of the Registration Statement
-15-
or preventing or suspending the use of any Preliminary Prospectus or the Prospectus or the initiation or threatening of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus, the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free Writing Prospectus is delivered to a purchaser, not misleading; (vi) of the receipt by the Issuer of any notice of objection of the Commission to the use of the Registration Statement or any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Securities Act; and (vii) of the receipt by the Issuer of any notice with respect to any suspension of the qualification of the Securities for offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose; and the Issuer will use its reasonable best efforts to prevent the issuance of any such order suspending the effectiveness of the Registration Statement, preventing or suspending the use of any Preliminary Prospectus or the Prospectus or suspending any such qualification of the Securities and, if any such order is issued, will use its commercially reasonable efforts to obtain as soon as practicable the withdrawal thereof.
(e) Time of Sale Information. If at any time prior to the Closing Date (i) any event shall occur or condition shall exist as a result of which any of the Time of Sale Information as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading or (ii) it is necessary to amend or supplement any of the Time of Sale Information to comply with law, the Issuer will as soon as practicable notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent required) and furnish to the Underwriters such amendments or supplements to any of the Time of Sale Information (or any document to be filed with the Commission and incorporated by reference therein) as may be necessary so that the statements in any of the Time of Sale Information as so amended or supplemented (including such documents to be incorporated by reference therein) will not, in the light of the circumstances under which they were made, be misleading or so that any of the Time of Sale Information will comply with law.
(f) Ongoing Compliance. If during the Prospectus Delivery Period (i) any event shall occur or condition shall exist as a result of which the Prospectus as then amended or supplemented would include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it is necessary to amend or supplement the Prospectus to comply with law, the Issuer will as soon as practicable notify the Underwriters thereof and forthwith prepare and, subject to paragraph (c) above, file with the Commission and furnish to the Underwriters such amendments or supplements to the Prospectus (or any document to be filed with the Commission and incorporated by
-16-
reference therein) as may be necessary so that the statements in the Prospectus as so amended or supplemented (including such documents to be incorporated by reference) will not, in the light of the circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that the Prospectus will comply with law.
(g) Blue Sky Compliance. The Issuer will qualify the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions as the Representatives shall reasonably request and will continue such qualifications in effect so long as required for the offering and resale of the Securities; provided that neither the Issuer nor any of the Guarantors shall be required to (i) qualify as a foreign corporation or other entity or as a dealer in securities in any such jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any such jurisdiction if it is not otherwise so subject.
(h) Earning Statement. The Issuer will make generally available to its security holders and the Representatives as soon as practicable an earning statement that satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering a period of at least twelve months beginning with the first fiscal quarter of the Issuer occurring after the effective date (as defined in Rule 158) of the Registration Statement.
(i) Clear Market. During the period from the date hereof through and including the Closing Date, the Issuer and each of the Guarantors will not, without the prior written consent of the Representatives, offer, sell, contract to sell or otherwise dispose of any debt securities issued or guaranteed by the Issuer or any of the Guarantors and having a tenor of more than one year.
(j) Use of Proceeds. The Issuer will apply the net proceeds from the sale of the Securities as described in each of the Registration Statement, the Time of Sale Information and the Prospectus under the heading Use of Proceeds.
(k) Euroclear and Clearstream. The Issuer will assist the Underwriters in arranging for the Securities to be eligible for clearance and settlement through Euroclear and Clearstream.
(l) No Stabilization. Neither the Issuer nor any of the Guarantors will take, directly or indirectly, any action designed to or that would reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(m) Record Retention. The Issuer will, pursuant to reasonable procedures developed in good faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission in accordance with Rule 433 under the Securities Act.
(n) Exchange Listing. The Issuer will use its commercially reasonable efforts to cause the Securities to be listed for trading on the NYSE within 30 days after the Closing Date.
-17-
(o) Stabilization. The Issuer hereby authorizes Barclays Bank PLC in its role as stabilizing manager (the Stabilizing Manager) to make adequate public disclosure regarding stabilization of the information required in relation to such stabilization by Commission Regulation (EU) No 596/2014 on market abuse of the Commission of the European Union. The Stabilizing Manager for its own account may, to the extent permitted by applicable laws and directives, over-allot and effect transactions with a view to supporting the market price of the Securities at a level higher than that which might otherwise prevail, but in doing so the Stabilizing Manager shall act as principal and not as agent of the Issuer and any loss resulting from overallotment and stabilization shall be borne, and any profit arising therefrom shall be beneficially retained, by the Stabilizing Manager. However, there is no assurance that the Stabilizing Manager (or persons acting on behalf of the Stabilizing Manager) will undertake any stabilization action. Nothing contained in this paragraph shall be construed so as to require the Issuer to issue in excess of the aggregate principal amount of Securities specified in Schedule 1 hereto. Such stabilization, if commenced, may be discontinued at any time and shall be conducted by the Stabilizing Manager in accordance with all applicable laws and directives.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning for use of, any free writing prospectus, as defined in Rule 405 under the Securities Act (which term includes use of any written information furnished to the Commission by the Issuer and not incorporated by reference into the Registration Statement and any press release issued by the Issuer) other than (i) a free writing prospectus that, solely as a result of use by such Underwriter, would not trigger an obligation to file such free writing prospectus with the Commission pursuant to Rule 433, (ii) any Issuer Free Writing Prospectus listed on Annex A or prepared pursuant to Section 3(c) or Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Issuer in advance in writing (each such free writing prospectus referred to in clauses (i) or (iii), an Underwriter Free Writing Prospectus).
(b) It is not subject to any pending proceeding under Section 8A of the Securities Act with respect to the offering of the Securities (and will promptly notify the Issuer if any such proceeding against it is initiated during the Prospectus Delivery Period).
6. Conditions of Underwriters Obligations. The obligation of each Underwriter to purchase Securities on the Closing Date as provided herein is subject to the performance by the Issuer and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the Registration Statement shall be in effect, and no proceeding for such purpose, pursuant to Rule 401(g)(2) or pursuant to Section 8A under the Securities Act
-18-
shall be pending before or threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of an Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance with Section 4(a) hereof; and all requests by the Commission for additional information shall have been complied with to the reasonable satisfaction of the Representatives.
(b) Representations and Warranties. The representations and warranties of the Issuer and the Guarantors contained herein shall be true and correct on the date hereof and on and as of the Closing Date; and the statements of the Issuer, the Guarantors and their respective officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of the Closing Date.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded the Issuer or any of its subsidiaries, the Securities or any other debt or preferred stock issued or guaranteed by the Issuer or any of its subsidiaries by any nationally recognized statistical rating organization, as such term is defined under Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the Securities or of any other debt securities or preferred stock issued or guaranteed by the Issuer or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g) hereof shall have occurred or shall exist, which event or condition is not described in each of the Time of Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any amendment or supplement thereto) the effect of which in the judgment of the Representatives makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officers Certificate. The Representatives shall have received on and as of the Closing Date a certificate of an executive officer of the Issuer (i) confirming that, to the knowledge of such officer, the representations set forth in Sections 3(b) and 3(c) hereof are true and correct, (ii) confirming that the other representations and warranties of the Issuer and the Guarantors in this Agreement are true and correct and that the Issuer and the Guarantors have complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date, Ernst & Young LLP shall have furnished to the Representatives, at the request of the Issuer, letters, dated the respective dates of delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives,
-19-
containing statements and information of the type customarily included in accountants comfort letters to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in each of the Registration Statement, the Time of Sale Information and the Prospectus; provided that the letter delivered on the Closing Date shall use a cut-off date no more than three business days prior to the Closing Date.
(g) Opinion and 10b-5 Statement of Counsel for the Issuer. (i) Davis Polk & Wardwell LLP, counsel for the Issuer and the Guarantors, shall have furnished to the Representatives, at the request of the Issuer, their written opinion and 10b-5 statement, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives, to the effect set forth in Annex C hereto, (ii) Davis Polk & Wardwell LLP, local counsel to the Guarantor in the United Kingdom, shall have furnished to the Representatives, at the request of the Issuer, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives and (iii) Carey Olsen, local counsel to the Issuer and the Guarantor in Jersey, at the request of the Issuer, their written opinion, dated the Closing Date and addressed to the Underwriters, in form and substance reasonably satisfactory to the Representatives.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representatives shall have received on and as of the Closing Date an opinion and 10b-5 statement of Cahill Gordon & Reindel LLP, counsel for the Underwriters, with respect to such matters as the Representatives may reasonably request, and such counsel shall have received such documents and information as they may reasonably request to enable them to pass upon such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Date, prevent the issuance or sale of the Securities or the issuance of the Guarantees.
(j) Good Standing. The Representatives shall have received on and as of the Closing Date satisfactory evidence of the good standing of the Issuer and the Guarantors in their respective jurisdictions of organization and their good standing in such other jurisdictions as the Representatives may reasonably request, in each case in writing or any standard form of telecommunication, from the appropriate governmental authorities of such jurisdictions.
(k) Euroclear and Clearstream. The Securities shall be eligible for clearance and settlement through Euroclear and Clearstream.
(l) Indenture and Securities. The Indenture shall have been duly executed and delivered by a duly authorized officer of the Issuer, each of the Guarantors, the Trustee and the Agent, and the Securities shall have been duly executed and delivered by a duly authorized officer of the Issuer and duly authenticated by the Agent.
(m) Additional Documents. On or prior to the Closing Date, the Issuer and the Guarantors shall have furnished to the Representatives such further certificates and documents as the Representatives may reasonably request.
-20-
All opinions, letters, certificates and evidence mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Issuer and each of the Guarantors jointly and severally agree to indemnify and hold harmless each Underwriter, its affiliates, directors and officers and each person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages and liabilities (including, without limitation, reasonable legal fees and other expenses incurred in connection with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several, that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any omission or alleged omission to state therein a material fact required to be stated therein or necessary in order to make the statements therein, not misleading, (ii) or any untrue statement or alleged untrue statement of a material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, or any omission or alleged omission to state therein a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, in each case except insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to any Underwriter furnished to the Issuer in writing by such Underwriter expressly for use therein, it being understood and agreed that the only such information consists of the information described in paragraph (b) below.
(b) Indemnification of the Issuer. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Issuer, each of the Guarantors, each of their respective directors, each of their respective officers who signed the Registration Statement and each person, if any, who controls the Issuer or any of the Guarantors within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in paragraph (a) above, but only with respect to any losses, claims, damages or liabilities that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with any information relating to such Underwriter furnished to the Issuer in writing by such Underwriter expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood and agreed that the only such information consists of the following under the heading Underwriting in the Preliminary Prospectus and the Prospectus: the third paragraph, the fifth sentence of the seventh paragraph and the eighth, ninth, tenth, and eleventh paragraphs.
-21-
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand shall be brought or asserted against any person in respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such person (the Indemnified Person) shall promptly notify the person against whom such indemnification may be sought (the Indemnifying Person) in writing; provided that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have under paragraph (a) or (b) above except to the extent that it has been materially prejudiced (through the forfeiture of substantive rights or defenses) by such failure; and provided, further, that the failure to notify the Indemnifying Person shall not relieve it from any liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b) above. If any such proceeding shall be brought or asserted against an Indemnified Person and it shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the Indemnified Person (which consent shall not be unreasonably withheld or delayed), be counsel to the Indemnifying Person) to represent the Indemnified Person and any others entitled to indemnification pursuant to this Section 7 that the Indemnifying Person may designate in such proceeding and shall pay the fees and expenses of such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such proceeding (including any impleaded parties) include both the Indemnifying Person and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood and agreed that the Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to one local counsel per jurisdiction) for all Indemnified Persons, and that all such fees and expenses shall be reimbursed as they are incurred. Any such separate firm for any Underwriter, its affiliates, directors and officers and any control persons of such Underwriter shall be designated in writing by such Underwriter and any such separate firm for the Issuer, the Guarantors, their respective directors and their respective officers who signed the Registration Statement and any control persons of the Issuer and the Guarantors shall be designated in writing by the Issuer. The Indemnifying Person shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each Indemnified Person from and against any loss or liability by reason of such settlement or judgment. No Indemnifying Person shall, without the written consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or could have been a party and indemnification could have been sought hereunder by such Indemnified Person, unless such
-22-
settlement (x) includes an unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to such Indemnified Person, from all liability on claims that are the subject matter of such proceeding and (y) does not include any statement as to or any admission of fault, culpability or a failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraph (a) or (b) above is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) but also the relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Issuer and the Guarantors on the one hand and the Underwriters on the other shall be deemed to be in the same respective proportions as the net proceeds (before deducting expenses) received by the Issuer from the sale of the Securities and the total underwriting discounts and commissions received by the Underwriters in connection therewith, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The relative fault of the Issuer and the Guarantors on the one hand and the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Issuer or any Guarantor or by the Underwriters and the parties relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Issuer, the Guarantors and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred by such Indemnified Person in connection with any such action or claim. Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to contribute any amount in excess of the amount by which the total underwriting discounts and commissions received by such Underwriter with respect to the offering of the Securities exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters obligations to contribute pursuant to this Section 7 are several in proportion to their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and shall not limit any rights or remedies that may otherwise be available to any Indemnified Person at law or in equity.
-23-
8. Termination. This Agreement may be terminated in the absolute discretion of the Representatives, by notice to the Issuer, if after the execution and delivery of this Agreement and on or prior to the Closing Date (i) trading generally shall have been suspended or materially limited on the New York Stock Exchange; (ii) trading of any securities issued or guaranteed by the Issuer or any of the Guarantors shall have been suspended on any exchange; (iii) a general moratorium on commercial banking activities shall have been declared by federal or New York State authorities; or (iv) there shall have occurred any outbreak or escalation of hostilities or any change in financial markets or any calamity or crisis, either within or outside the United States, that, in the judgment of the Representatives, is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Securities on the terms and in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
9. Defaulting Underwriter.
(a) If, on the Closing Date, any Underwriter defaults on its obligation to purchase the Securities that it has agreed to purchase hereunder, the non-defaulting Underwriters may in their discretion arrange for the purchase of such Securities by other persons satisfactory to the Issuer on the terms contained in this Agreement. If, within 36 hours after any such default by any Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities, then the Issuer shall be entitled to a further period of 36 hours within which to procure other persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms. If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter, either the non-defaulting Underwriters or the Issuer may postpone the Closing Date for up to five full business days in order to effect any changes that in the opinion of counsel for the Issuer or counsel for the Underwriters may be necessary in the Registration Statement, the Time of Sale Information and the Prospectus or in any other document or arrangement, and the Issuer agrees to promptly prepare any amendment or supplement to the Registration Statement, the Time of Sale Information and the Prospectus that effects any such changes. As used in this Agreement, the term Underwriter includes, for all purposes of this Agreement unless the context otherwise requires, any person not listed in Schedule 1 hereto that, pursuant to this Section 9, purchases Securities that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased does not exceed one-eleventh of the aggregate principal amount of all the Securities, then the Issuer shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Securities that such Underwriter agreed to purchase hereunder plus such Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made.
-24-
(c) If, after giving effect to any arrangements for the purchase of the Securities of a defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Issuer as provided in paragraph (a) above, the aggregate principal amount of such Securities that remains unpurchased exceeds one-eleventh of the aggregate principal amount of all the Securities, or if the Issuer shall not exercise the right described in paragraph (b) above, then this Agreement shall terminate without liability on the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this Section 9 shall be without liability on the part of the Issuer or the Guarantors, except that the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may have to the Issuer, the Guarantors or any non-defaulting Underwriter for damages caused by its default.
10. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement are consummated or this Agreement is terminated, the Issuer and each of the Guarantors jointly and severally agree to pay or cause to be paid all costs and expenses incident to the performance of their respective obligations hereunder, including without limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery of the Securities and any taxes payable in that connection; (ii) the costs incident to the preparation and printing and filing under the Securities Act of the Registration Statement of the Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information, and the Prospectus (including any exhibit, amendment or supplement thereto) and the distribution thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv) the fees and expenses of the Issuers and the Guarantors counsel and independent accountants; (v) the fees and expenses incurred in connection with the registration or qualification and determination of eligibility for investment of the Securities under the laws of such jurisdictions as the Representatives may designate and the preparation, printing and distribution of a Blue Sky Memorandum (including the related fees and expenses of counsel for the Underwriters in an amount not to exceed $10,000); (vi) any fees charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee and the Agent (including related fees and expenses of any counsel to such parties); (viii) all expenses and application fees incurred in connection with any filing with, and clearance of the offering by, FINRA and the approval of the Securities for eligibility for clearance and settlement through Euroclear and Clearstream; (ix) the fees and expenses incurred in connection with the listing of Securities on the NYSE; and (x) all expenses incurred by the Issuer in connection with any road show presentation to potential investors; provided, that the Issuer will pay for only 50% of the expense of any chartered aircraft jointly used.
(b) If (i) this Agreement is terminated pursuant to clause (ii) of Section 8, (ii) the Issuer for any reason fails to tender the Securities for delivery to the Underwriters, or (iii) the Underwriters decline to purchase the Securities for any reason permitted under this Agreement other than pursuant to clauses (i), (iii) or (iv) of Section 8 or Section 9, the Issuer and each of the Guarantors jointly and severally agree to reimburse the Underwriters for all documented out-of-pocket costs and expenses (including the fees and expenses of their counsel) reasonably incurred
-25-
by the Underwriters in connection with this Agreement and the offering contemplated hereby. Notwithstanding anything to the contrary herein, each Underwriter agrees, at its own expense, to pay the portion of all expenses not reimbursed by the Issuer and the Guarantors pursuant to Section 10 hereof represented by such Underwriters pro rata share (based on the principal amount of Securities that such Underwriter agreed to purchase hereunder) of the Securities.
11. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and any controlling persons referred to herein, and the affiliates, officers and directors of each Underwriter referred to in Section 7 hereof. Nothing in this Agreement is intended or shall be construed to give any other person any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision contained herein. No purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of such purchase.
12. Survival. The respective indemnities, rights of contribution, representations, warranties and agreements of the Issuer, the Guarantors and the Underwriters contained in this Agreement or made by or on behalf of the Issuer, the Guarantors or the Underwriters pursuant to this Agreement or any certificate delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall remain in full force and effect, regardless of any termination of this Agreement or any investigation made by or on behalf of the Issuer, the Guarantors or the Underwriters.
13. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise expressly provided, the term affiliate has the meaning set forth in Rule 405 under the Securities Act; (b) the term business day means any day other than a day on which banks are permitted or required to be closed in New York City; (c) the term subsidiary has the meaning set forth in Rule 405 under the Securities Act; and (d) the term significant subsidiary means, collectively, any significant subsidiary within the meaning of Rule 1-02 of Regulation S-X under the Exchange Act listed on Schedule 3 hereto and any other Guarantor listed on Schedule 2 hereto.
14. Compliance with USA Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Issuer and the Guarantors, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
15. Agreement Among Managers. The execution of this Agreement by all parties will constitute the Underwriters acceptance of the ICMA Agreement Among Managers Version 1/New York Schedule subject to any amendment notified to the Underwriters in writing at any time prior to the execution of this Agreement. References to the Managers shall be deemed to refer to the Underwriters, references to the Lead Manager shall be deemed to refer to each of Barclays Bank PLC, Deutsche Bank AG, London Branch and J.P. Morgan Securities plc and references to Settlement Lead Manager shall be deemed to refer to Barclays Bank PLC. As applicable to the Underwriters, Clause 3 of the ICMA Agreement Among Managers Version 1/New York Schedule shall be deemed to be deleted in its entirety and replaced with Section 9 of this Agreement.
-26-
16. Miscellaneous.
(a) Authority of the Representatives. Any action by the Underwriters hereunder may be taken by the Representatives on behalf of the Underwriters and any such action taken by the Representatives shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if mailed or transmitted and confirmed by any standard form of telecommunication. Notices to the Underwriters shall be given to the Representatives c/o Barclays Bank PLC, 5 The North Colonnade, Canary Wharf, London E14 4BB, Attn: Debt Syndicate, (Fax Number: +44 (0) 207 773 4894), c/o Deutsche Bank AG, London Branch, Winchester House, 1 Great Winchester Street, London, EC2N 2DB, United Kingdom, Attn: Syndicate Desk (Fax: +44 207 545 4455) and c/o J.P. Morgan Securities plc, 25 Bank Street, Canary Wharf, London, E14 5JP, United Kingdom, Attn: Head of Debt Syndicate and Head of Debt Capital Markets Group, Legal (Fax: +44 203 493 0682). Notices to the Issuer and the Guarantors shall be given to them at Delphi Automotive Systems, LLC, 5725 Delphi Drive, Troy, Michigan 48098, Attention: Brad Spiegel (Fax: (248) 813-2103).
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or related to this Agreement shall be governed by and construed in accordance with the laws of the State of New York.
(d) Consent to Jurisdiction. Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (Related Proceedings) shall be instituted in the federal courts of the United States of America located in the City and County of New York or the courts of the State of New York in each case located in the City and County of New York (collectively, the Specified Courts), and each of the Issuer and the other parties hereto irrevocably submits to the exclusive jurisdiction (except for suits, actions, or proceedings instituted in regard to the enforcement of a judgment of any Specified Court in a Related Proceeding, as to which such jurisdiction is non-exclusive) of the Specified Courts in any Related Proceeding. Service of any process, summons, notice or document by mail to such partys address set forth in paragraph (b) above shall be effective service of process for any Related Proceeding brought in any Specified Court. The Issuer and the other parties hereto irrevocably and unconditionally waive any objection to the laying of venue of any Specified Proceeding in the Specified Courts and irrevocably and unconditionally waive and agree not to plead or claim in any Specified Court that any Related Proceeding brought in any Specified Court has been brought in an inconvenient forum.
(e) Waiver of Jury Trial. Each of the parties hereto hereby waives any right to trial by jury in any suit or proceeding arising out of or relating to this Agreement.
(f) Currency. Any payment on account of an amount that is payable to any of the Underwriters in a particular currency (the Required Currency) that is paid to or for the account of such Underwriter in the lawful currency of any other jurisdiction (the Other Currency),
-27-
whether as a result of any judgment or order or the enforcement thereof or the liquidation of the Issuer or for any other reason shall constitute a discharge of the obligation of the Issuer only to the extent of the amount of the Required Currency which the recipient could purchase in the New York or London foreign exchange markets with the amount of the Other Currency in accordance with normal banking procedures at the rate of exchange prevailing on the first day (other than a Saturday or Sunday) on which banks in New York or London are generally open for business following receipt of the payment first referred to above. If the amount of the Required Currency that could be so purchased (net of all premiums and costs of exchange payable in connection with the conversion) is less than the amount of the Required Currency originally due to the recipient, then the Issuer shall indemnify and hold harmless the recipient from and against all loss or damage arising out of or as a result of such deficiency. This indemnity shall constitute an obligation separate and independent from the other obligations of the Issuer, shall give rise to a separate and independent cause of action, shall apply irrespective of any indulgence granted by any person owed such obligation from time to time and shall continue in full force and effect notwithstanding any judgment or order for a liquidated sum in respect of an amount due hereunder or any judgment or order
(g) Counterparts. This Agreement may be signed in counterparts (which may include counterparts delivered by any standard form of telecommunication), each of which shall be an original and all of which together shall constitute one and the same instrument.
(h) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective unless the same shall be in writing and signed by the parties hereto.
(i) Headings. The headings herein are included for convenience of reference only and are not intended to be part of, or to affect the meaning or interpretation of, this Agreement.
17. Contractual Recognition of Bail-In.
Notwithstanding and to the exclusion of any other term of this Agreement or any other agreements, arrangements or understanding between the Representatives, the Issuer and the Guarantors, each of the the Issuer and the Guarantors acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of Bail-In Powers by the Relevant Resolution Authority, and acknowledges, accepts, and agrees to be bound by:
(a) the effect of the exercise of Bail-In Powers by the Relevant Resolution Authority in relation to any BRRD Liability of any of the Underwriters under this Agreement, that (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of the BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion of, the BRRD Liability into shares, other securities or other obligations of an Underwriter or another person, and the issue to or conferral on each of the Issuer and the Guarantors of such shares, securities or obligations;
-28-
(iii) the cancellation of the BRRD Liability;
(iv) the amendment or alteration of any interest, if applicable, thereon, the maturity or the dates on which any payments are due, including by suspending payment for a temporary period;
(b) the variation of the terms of this Agreement, as deemed necessary by the Relevant Resolution Authority, to give effect to the exercise of Bail-In Powers by the Relevant Resolution Authority.
(c) As used in this Section 15:
(i) Bail-in Legislation means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time.
(ii) Bail-in Powers means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation.
(iii) BRRD means Directive 2014/59/EU establishing a framework for the recovery and resolution of credit institutions and investment firms.
(iv) EU Bail-in Legislation Schedule means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time at http://www.lma.eu.com/pages.aspx?p=499.
(v) BRRD Liability means a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised.
(vi) Relevant Resolution Authority means the resolution authority with the ability to exercise any Bail-in Powers.
-29-
If the foregoing is in accordance with your understanding, please indicate your acceptance of this Agreement by signing in the space provided below.
Very truly yours, | ||||
DELPHI AUTOMOTIVE PLC | ||||
By: | /s/ Bradley A. Spiegel | |||
Name: | Bradley A. Spiegel | |||
Title: | Vice President, Business Planning & Finance Operations | |||
DELPHI AUTOMOTIVE LLP | ||||
By: | /s/ Bradley A. Spiegel | |||
Name: | Bradley A. Spiegel | |||
Title: | Authorized Representative | |||
DELPHI AUTOMOTIVE HOLDINGS US LIMITED | ||||
By: | /s/ Bradley A. Spiegel | |||
Name: | Bradley A. Spiegel | |||
Title: | Authorized Representative | |||
DELPHI CORPORATION | ||||
By: | /s/ Bradley A. Spiegel | |||
Name: | Bradley A. Spiegel | |||
Title: | Vice President, Business Planning & Finance Operations |
[Signature Page to Underwriting Agreement]
Accepted:
BARCLAYS BANK PLC | ||
By: | /s/ Giovanna Trucco | |
Name: Giovanna Trucco | ||
Title: Authorised Attorney | ||
DEUTSCHE BANK AG, LONDON BRANCH | ||
By: | /s/ John C. McCabe | |
Name: John C. McCabe | ||
Title: Managing Director | ||
By: | /s/ Marc Fratepietro | |
Name: Marc Fratepietro | ||
Title: Managing Director | ||
J.P. MORGAN SECURITIES PLC | ||
By: | /s/ Nick Darrant | |
Name: Nick Darrant | ||
Title: Executive Director | ||
BNP PARIBAS | ||
By: | /s/ Hugh Pryse-Davies | |
Name: Hugh Pryse-Davies | ||
Title: Duly Authorized Signatory | ||
By: | /s/ Benedict Foster | |
Name: Benedict Foster | ||
Title: Authorised Signatory |
[Signature Page to Underwriting Agreement]
MORGAN STANLEY & CO. LLC | ||
By: | /s/ Yurij Slyz | |
Name: Yurij Slyz | ||
Title: Executive Director - Transaction Execution | ||
SMBC NIKKO CAPITAL MARKETS LIMITED | ||
By: | /s/ Daryl Folkard | |
Name: Daryl Folkard | ||
Title: Authorized Attorney | ||
SOCIÉTÉ GÉNÉRALE | ||
By: | /s/ Cécile Camilli | |
Name: Cécile Camilli | ||
Title: Managing Director - Head of CEEMEA Debt Capital Markets | ||
TD SECURITIES (USA) LCC | ||
By: | /s/ Elsa Wang | |
Name: Elsa Wang | ||
Title: Director | ||
UNICREDIT BANK AG | ||
By: | /s/ Benjamin Reini | |
Name: Benjamin Reini | ||
Title: | ||
By: | /s/ Adrian Schäfer | |
Name: Adrian Schäfer | ||
Title: | ||
WELLS FARGO SECURITIES INTERNATIONAL LIMITED | ||
By: | /s/ Faye Thorogood | |
Name: Faye Thorogood | ||
Title: VP |
[Signature Page to Underwriting Agreement]
SCHEDULE 1
Underwriters |
Principal Amount of the Securities |
|||
Barclays Bank PLC |
| 114,883,000 | ||
Deutsche Bank AG, London Branch |
114,883,000 | |||
J.P. Morgan Securities plc |
114,883,000 | |||
BNP Paribas |
22,193,000 | |||
Morgan Stanley & Co. LLC |
22,193,000 | |||
SMBC Nikko Capital Markets Limited |
22,193,000 | |||
Société Générale |
22,193,000 | |||
TD Securities (USA) LLC |
22,193,000 | |||
UniCredit Bank AG |
22,193,000 | |||
Wells Fargo Securities International Limited |
22,193,000 | |||
|
|
|||
Total |
| 500,000,000 |
SCHEDULE 2
Guarantors
Name |
Jurisdiction of Incorporation | |
Delphi Automotive LLP | United Kingdom | |
Delphi Automotive Holdings US Limited | Jersey | |
Delphi Corporation | Delaware |
SCHEDULE 3
Significant Subsidiaries
Delphi Financial Services S.ar.l (Luxembourg)
Delphi Global Investments LLP Luxembourg Branch
Delphi Financial Services Limited (UK)
Delphi Deutschland Technologies GmbH (Germany)
Delphi Automotive Holdings Limited (United Kingdom)
Delphi Manufacturing Management S.ar.l
Delphi Packard Electric Systems Company Ltd. (China)
Delphi Deutschland GmbH (Germany)
Delphi Holdings Luxembourg S.ar.l.
Delphi Holdfi Luxembourg S.ar.l (Luxembourg)
Delphi Poland S.A. (Poland)
Delphi Financial Holdings LLP (United Kingdom)
Delphi UK Financial Services LLP (United Kingdom)
Delphi Global Holdings Limited (United Kingdom)
Delphi Financial Operations UK Limited (United Kingdom)
Delphi (UK) Holdings Limited (United Kingdom)
Delphi Holdings LLC
Delphi Corporation
Delphi Automotive Systems, LLC (US - Delaware)
Delphi Automotive Systems Singapore Pte. Ltd. (Singapore)
Delphi Holding SAS (France)
Delphi International S.ar.l. (Luxembourg)
Delphi International Holdings S.ar.l. (Luxembourg)
Delphi Automotive LLP (United Kingdom)
Delphi International Holdings LLP (United Kingdom)
Delphi Automotive Holdings US Ltd (Jersey)
Delphi Asia Pacific Sarl
Delphi Latin America Holdings LLP
Delphi Asia Pacific Sarl (Luxembourg)
Delphi Luxembourg Financing Sarl
Delphi Automotive Investment SARL
Delphi Luxembourg Limited
Delphi Automotive Luxembourg LLP
Delphi Automotive Systems LLC EEA
HellermannTyton Corporation
Delphi Automotive Systems LLC - HQ
ANNEX A
Additional Time of Sale Information
1. Term sheet containing the terms of the Securities, substantially in the form of Annex B.
ANNEX B
[See Attached]
Filed Pursuant to Rule 433
Registration Statement No. 333-207700
Pricing Term Sheet
August 31, 2016
Delphi Automotive PLC
Pricing Term Sheet
Issuer: | Delphi Automotive PLC | |
Guarantees: | The notes will be guaranteed by certain of the Issuers existing and future subsidiaries that are obligors under Delphi Corporations outstanding notes and revolving credit facility. | |
Security: | 1.600% Senior Notes due 2028 | |
Principal Amount: | 500,000,000 | |
Trade Date: | August 31, 2016 | |
Settlement Date**: | September 15, 2016 | |
Maturity: | September 15, 2028 | |
Interest Payment Dates: | Annually on September 15, beginning on September 15, 2017 | |
Mid-Swap Yield: | 0.411% | |
Spread to Mid-Swap Yield: | +120 bps | |
Re-offer Yield: | 1.611% | |
Coupon (Interest Rate): | 1.600% | |
Issue Price (Price to Public): | 99.881% of face amount | |
Benchmark Bund: | DBR 0% due August 15, 2026 | |
Benchmark Bund Yield: | -0.088% | |
Spread to Benchmark Bund: | +169.9 bps | |
Gross Proceeds: | 499,405,000 | |
Fees: | 0.50% | |
Net Proceeds before Estimated Expenses: | 496,905,000 | |
Day Count Fraction: | Actual/Actual (ICMA) | |
Denominations: | 100,000 and integral multiples of 1,000 in excess thereof | |
Redemption Provisions: | ||
Make-Whole Call: |
Before the par call date at a discount rate of the applicable Comparable Government Bond Rate plus 25 basis points, plus accrued and unpaid interest, if any | |
Par Call: |
Commencing June 15, 2028, plus accrued and unpaid interest, if any | |
Use of Proceeds: | Repay a portion of Delphi Corporations 5.00% Senior Notes due 2023 | |
Clearing and Settlement: | Euroclear/Clearstream | |
Stabilization: | Stabilization/FCA | |
CUSIP/ISIN/Common Code: | 24713G AC6 / XS1485603747 / 148560374 |
Listing: | Application will be made to list the notes on the New York Stock Exchange | |
Joint Book-Running Managers: | Barclays Bank PLC Deutsche Bank AG, London Branch J.P. Morgan Securities plc | |
Co-Managers: | BNP Paribas Morgan Stanley & Co. LLC SMBC Nikko Capital Markets Limited Société Générale TD Securities (USA) LLC UniCredit Bank AG Wells Fargo Securities International Limited |
** | It is expected that delivery of the notes will be made to investors on or about September 15, 2016, which will be the tenth US business day following the date hereof (such settlement being referred to as T+10). Under Rule 15c6-1 under the Securities Exchange Act of 1934, trades in the secondary market are required to settle in three business days, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes on the date of pricing or the next succeeding six business days will be required, by virtue of the fact that the notes initially settle in T+10, to specify an alternate settlement arrangement at the time of any such trade to prevent a failed settlement. Purchasers of the notes who wish to trade the notes on the date of pricing or the next succeeding six business days should consult their own advisors. |
The issuer has filed a registration statement (including a prospectus) with the SEC for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the issuer has filed with the SEC for more complete information about the issuer and this offering. You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov. Alternatively, the issuer, any underwriter or any dealer participating in the offering will arrange to send you the prospectus if you request it by calling or emailing, as applicable, (1) Barclays Bank PLC at +44 (0) 20 7773 9098, (2) Deutsche Bank AG, London Branch toll-free at 1-800-503-4611 (or via email at synops@list.db.com) or (3) J.P. Morgan Securities plc collect at +44-207-134-2468.
Any disclaimers or other notices that may appear below are not applicable to this communication and should be disregarded. Such disclaimers or other notices were automatically generated as a result of this communication being sent via Bloomberg email or another communication system.
ANNEX C
Form of Opinion of Counsel for the Issuer and the Guarantors
1. | Delphi Corporation is validly existing as a corporation in good standing under the laws of the State of Delaware and has the corporate power and authority to enter into the Underwriting Agreement and the Indenture and to perform its obligations thereunder. |
2. | The Underwriting Agreement has been duly authorized, executed and delivered by Delphi Corporation. |
3. | Assuming that the Notes have been duly authorized by the Issuer and when executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Notes will be valid and binding obligations of the Issuer, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general applicability, and will be entitled to the benefits of the Indenture pursuant to which such Notes are to be issued; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law, (y) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest. |
4. | The Indenture has been duly authorized, executed and delivered by Delphi Corporation, and assuming due authorization, execution and delivery thereof by the Issuer and each other Guarantor, the Indenture is a valid and binding agreement of the Issuer and each Guarantor, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general applicability; provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law, (y) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of any Guarantors obligation or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest. |
5. | Neither the Issuer nor any Guarantor is, nor after giving effect to the offering and sale of the Securities and the application of the proceeds thereof as described in the Prospectus will be, required to register as an investment company as such term is defined in the Investment Company Act of 1940, as amended. |
6. | The execution and delivery by the Issuer and each Guarantor of the Indenture, the Notes (in the case of the Issuer) and the Underwriting Agreement (collectively, the Documents) will not contravene (i) the General Corporation Law of the State of Delaware or any provision of the statutory laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, provided that we express no opinion as to federal or state securities laws, (ii) the certificate of incorporation or by-laws of Delphi Corporation or (iii) any agreement that is specified in Annex A hereto, provided that we express no opinion in clause (iii) as to compliance with any financial or accounting test, or any limitation or restriction expressed as a dollar (or other currency) amount, ratio or percentage in any of the agreements specified in Annex A. |
7. | The issuance of the Notes and execution and delivery of the Third Supplemental Indenture is authorized under the Base Indenture. |
8. | No consent, approval, authorization, or order of, or qualification with, any governmental body or agency under the General Corporation Law of the State of Delaware, the laws of the State of New York or any federal law of the United States of America that in our experience is normally applicable to general business corporations in relation to transactions of the type contemplated by the Documents, is required for the execution, delivery and performance by the Issuer or each Guarantor of its respective obligations under the applicable Documents, except such as may be required under federal or state securities or Blue Sky laws as to which we express no opinion. |
We have considered the statements included in the Disclosure Package and the Prospectus under the captions Description of Debt Securities and Guarantees of Debt Securities and Description of Notes insofar as they summarize provisions of the Indenture and the Securities. In our opinion, such statements fairly summarize these provisions in all material respects. The statements included in the Disclosure Package and the Prospectus under the caption Tax Considerations U.S. Federal Income Tax Considerations, insofar as they purport to describe provisions of U.S. federal income tax laws or legal conclusions with respect thereto, and subject to the limitations and qualifications set forth therein, accurately summarize the matters referred to therein in all material respects.
C-2
Exhibit 4.2
1.600% SENIOR NOTES DUE 2028
THIRD SUPPLEMENTAL INDENTURE
among
DELPHI AUTOMOTIVE PLC,
as Issuer
THE GUARANTORS FROM TIME TO TIME PARTY HERETO,
as Guarantors
WILMINGTON TRUST, NATIONAL ASSOCIATION,
as Trustee
and
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Registrar, Paying Agent and Authenticating Agent
Dated as of September 15, 2016
TABLE OF CONTENTS
PAGE | ||||||
ARTICLE 1 DEFINITIONS |
| |||||
Section 1.01. |
Definition of Terms | 1 | ||||
Section 1.02. |
Other Definitions | 6 | ||||
ARTICLE 2 TERMS AND CONDITIONS OF THE NOTES |
| |||||
Section 2.01. |
Terms of the Notes | 7 | ||||
Section 2.02. |
Execution and Authentication | 9 | ||||
Section 2.03. |
Valuation of Principal Amount of Securities | 9 | ||||
ARTICLE 3 REDEMPTION OF THE NOTES |
| |||||
Section 3.01. |
Optional Redemption | 10 | ||||
Section 3.02. |
Tax Redemption | 11 | ||||
ARTICLE 4 NOTE GUARANTEES |
| |||||
Section 4.01. |
Note Guarantees | 12 | ||||
Section 4.02. |
Future Guarantees | 12 | ||||
ARTICLE 5 COVENANTS |
| |||||
Section 5.01. |
Limitation on Liens | 12 | ||||
Section 5.02. |
Limitation on Sale/Leaseback Transactions | 15 | ||||
Section 5.03. |
Payments of Additional Amounts | 15 | ||||
Section 5.04. |
Change of Control Triggering Event | 18 | ||||
ARTICLE 6 CONSOLIDATION, MERGER AND SALE OF ASSETS |
| |||||
Section 6.01. |
Consolidation, Merger and Sale of Assets of Guarantors | 20 | ||||
ARTICLE 7 EVENTS OF DEFAULT |
| |||||
Section 7.01. |
Events of Default | 20 | ||||
Section 7.02. |
Limitations on Suits | 21 |
-i-
ARTICLE 8 AMENDMENTS AND WAIVERS |
| |||||
Section 8.01. |
Without Consent of Holder | 21 | ||||
ARTICLE 9 MISCELLANEOUS |
| |||||
Section 9.01. |
Ratification of Base Indenture | 21 | ||||
Section 9.02. |
Governing Law | 21 | ||||
Section 9.03. |
Separability | 21 | ||||
Section 9.04. |
Counterparts | 21 | ||||
EXHIBITS |
||||||
Exhibit A | Form of 2028 Note |
-ii-
THIRD SUPPLEMENTAL INDENTURE, dated as of September 15, 2016 (this Third Supplemental Indenture), among Delphi Automotive PLC, a public limited company formed under the laws of Jersey (the Issuer), the guarantors from time to time party hereto, Wilmington Trust, National Association, as trustee (together with its successors and assigns in such capacity, the Trustee), and Deutsche Bank Trust Company Americas, a New York banking corporation, as Registrar, Paying Agent and Authenticating Agent under the Senior Indenture, dated as of March 10, 2015, among the Issuer, the guarantors from time to time party thereto, Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent, and the Trustee (the Base Indenture and, together with this Third Supplemental Indenture, the Indenture).
WHEREAS, the Issuer executed and delivered the Base Indenture to the Trustee to provide, among other things, for the future issuance of the Issuers Notes to be issued from time to time in one or more series as might be determined by the Issuer under the Base Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Indenture;
WHEREAS, Section 2.03 of the Base Indenture provides for various matters with respect to any series of Notes issued under the Base Indenture to be established in an indenture supplemental to the Base Indenture;
WHEREAS, Section 9.01 of the Base Indenture provides for the Issuer and the Trustee to enter into a supplemental indenture to the Base Indenture to establish the form or terms of Notes of any series as permitted by Section 2.03 of the Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Issuer desires to provide for the establishment of a new series of Notes to be known as its 1.600% Senior Notes due 2028 (the 2028 Notes), the form and substance of such 2028 Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Third Supplemental Indenture; and
WHEREAS, the Issuer has requested that the Trustee execute and deliver this Third Supplemental Indenture and all requirements necessary to make (i) this Third Supplemental Indenture a valid instrument in accordance with its terms, and (ii) the 2028 Notes, when executed by the Issuer and authenticated and delivered by the Authenticating Agent, the valid obligations of the Issuer, have been performed, and the execution and delivery of this Third Supplemental Indenture has been duly authorized in all respects.
NOW THEREFORE, in consideration of the purchase and acceptance of the 2028 Notes by the Holders thereof, and for the purpose of setting forth, as provided in the Base Indenture, the form 2028 Note and substance of the 2028 Notes and the terms, provisions and conditions thereof, the Issuer and the Guarantors covenant and agree with the Trustee as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definition of Terms. Unless the context otherwise requires:
(a) a term defined in the Base Indenture has the same meaning when used in this Third Supplemental Indenture unless the definition of such term is otherwise provided pursuant to this Third Supplemental Indenture, in which case the definition in this Third Supplemental Indenture shall govern solely with respect to the 2028 Notes;
(b) a term defined anywhere in this Third Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) unless stated otherwise, a reference to a Section or Article is to a Section or Article in this Third Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect interpretation;
(f) each reference to U.S. Government Obligations in the Base Indenture is, with respect to the 2028 Notes, replaced with Government Obligations; and
(g) the following terms have the meanings given to them in this Section 1.01(g):
Additional 2028 Notes means additional 2028 Notes constituting part of the same series as the 2028 Notes issued on the Issue Date having identical terms and conditions to the 2028 Notes, except with respect to issue date, issue price and interest prior to the first Interest Payment Date.
Attributable Debt means, with respect to any Sale and Leaseback Transaction that does not result in a Capitalized Lease Obligation, the present value (computed in accordance with GAAP) of the total obligations of the lessee for rental payments during the remaining term of the lease included in such Sale and Leaseback Transaction (including any period for which such lease has been extended). In the case of any lease which is terminable by the lessee upon payment of a penalty, the Attributable Debt shall be the lesser of:
(1) the Attributable Debt determined assuming termination upon the first date such lease may be terminated (in which case the Attributable Debt shall also include the amount of the penalty, but no rent shall be considered as required to be paid under such lease subsequent to the first date upon which it may be so terminated); and
(2) the Attributable Debt determined assuming no such termination.
Business Day means each day which is not a Legal Holiday.
Capital Stock of any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) equity of such Person, including any preferred stock, but excluding any debt securities convertible into such equity.
Capitalized Lease Obligations means an obligation that is required to be classified and accounted for as a capitalized lease for financial reporting purposes in accordance with GAAP, and the amount of Indebtedness represented by such obligation shall be the capitalized amount of such obligation determined in accordance with GAAP.
Cash Management Obligations means obligations in respect of overdraft and related liabilities arising from treasury, depositary and cash management services or any automated clearing house transfers of funds or participating in commercial (or purchasing) card programs.
Clearstream means Clearstream Banking, a société anonyme, as currently in effect or any successor securities clearing agency.
Common Depository means Deutsche Bank AG, London Branch, as common depository for Euroclear and Clearstream.
-2-
Consolidated Total Assets means, at any time, the total consolidated assets of Delphi LLP and its Subsidiaries, as shown on the most recent balance sheet of Delphi LLP at such time calculated on a pro forma basis to give effect to any acquisition or disposition of any Person or line of business after the date thereof.
Credit Agreement means, the Amended and Restated Credit Agreement, dated as of August 17, 2016 by and among the Issuer, Delphi LLP, Delphi Automotive Holdings US Limited, Delphi Corporation, the several lenders from time to time party thereto and JPMorgan Chase Bank, N.A., as Administrative Agent (including, without limitation, any guarantee agreements and security documents), in each case as such agreements may be further amended (including any amendment and restatement thereof), supplemented, extended or otherwise modified from time to time.
Credit Facilities means (1) the Credit Agreement and (2) one or more debt facilities, indentures or other agreements refinancing, replacing, amending, restating or supplementing (whether or not contemporaneously and whether or not related to the agreements specified above) or otherwise restructuring or increasing the amount of available borrowings or other credit extensions under or making Subsidiaries of Delphi LLP a borrower, additional borrower or guarantor under, all or any portion of the Indebtedness under such agreement or any successor, replacement or supplemental agreement and whether including any additional obligors or with the same or any other agent, lender or group of lenders or with other financial institutions or lenders.
Delphi LLP means Delphi Automotive LLP, a limited liability partnership organized under the laws of England and Wales (and its successors).
Domestic Subsidiary means any Subsidiary that was formed under the laws of the United States, any state of the United States or the District of Columbia.
Euroclear means the Euroclear Bank S.A./N.V., as operator of the Euroclear system or any successor securities clearing agency.
Existing Notes means Delphi Corporations 5.00% Senior Notes due 2023.
GAAP means generally accepted accounting principles in the United States of America as in effect as of the Issue Date set forth in:
(1) the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants,
(2) statements and pronouncements of the Financial Accounting Standards Board,
(3) such other statements by such other entities as approved by a significant segment of the accounting profession, and
(4) the rules and regulations of the SEC governing the inclusion of financial statements (including pro forma financial statements) in periodic reports required to be filed pursuant to Section 13 of the Exchange Act, including opinions and pronouncements in staff accounting bulletins and similar written statements from the accounting staff of the SEC.
Government Obligations means (1) direct obligations of the Federal Republic of Germany, where the timely payment or payments thereunder are supported by the full faith and credit of the Federal Republic of Germany or (2) obligations of a person controlled or supervised by and acting as an agency or
-3-
instrumentality of the Federal Republic of Germany, where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the Federal Republic of Germany, which, in either case under clauses (1) or (2) are not callable or redeemable at the option of the issuer thereof, and shall also include a depositary receipt issued by a bank or trust company as custodian with respect to any such Federal Republic of Germany Obligations or a specific payment of interest on or principal of or other amount with respect to any such Federal Republic of Germany Obligations held by such custodian for the account of the holder of a depositary receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such depositary receipt from any amount received by the custodian in respect of the Federal Republic of Germany Obligations or the specific payment of interest on or principal of or other amount with respect to the Federal Republic of Germany Obligations evidenced by such depositary receipt.
Guarantor means Delphi LLP, Delphi Automotive Holdings US Limited, Delphi Corporation and any Person that provides a Note Guarantee of the 2028 Notes under the Indenture, until released as provided in Section 10.05 of the Base Indenture or Section 4.02 of this Third Supplemental Indenture.
Indebtedness means the principal of and premium (if any) in respect of indebtedness of such Person for borrowed money.
Notwithstanding the foregoing, (i) in connection with the purchase by Delphi LLP or any Subsidiary of any business, the term Indebtedness will exclude bona fide post-closing payment adjustments to which the seller may become entitled to the extent such payment is determined by a final closing balance sheet or such payment depends on the performance of such business after the closing; provided, however, that, at the time of closing, the amount of any such payment is not determinable and, to the extent such payment thereafter becomes fixed and determined, the amount is paid within 30 days thereafter and (ii) Cash Management Obligations and other obligations in respect of card obligations, netting services, overdraft protections, cash management services and similar arrangements shall not constitute Indebtedness.
The amount of Indebtedness of any Person at any date shall be the outstanding balance at such date of all unconditional obligations as described above; provided, however, that in the case of Indebtedness sold at a discount, the amount of such Indebtedness at any time will be the accreted value thereof at such time.
interest means, with respect to the 2028 Notes, interest on the 2028 Notes and any Additional Amounts in respect thereof.
Investment Grade Rating means a rating equal to or higher than Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by Standard & Poors, or if Moodys or Standard & Poors shall cease to provide a rating of the 2028 Notes, an equivalent rating by any other Ratings Agency.
Issue Date means September 15, 2016.
Legal Holiday a Saturday, Sunday or other day on which the Trustee, Registrar and Paying Agent or banking institutions are not required by law or regulation to be open in the State of New York or London and, for any place of payment outside of New York City or London, in such place of payment, and on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, does not operate.
Lien means any mortgage, pledge, security interest, encumbrance, lien or charge in the nature of an encumbrance of any kind (including any conditional sale or other title retention agreement or lease in the nature thereof); provided that any obligation in respect of an operating lease shall not be deemed a lien.
-4-
Moodys means Moodys Investors Service, Inc. and any successor to its rating business.
Note Guarantee means each guarantee of the obligations with respect to the 2028 Notes of a series issued by a Guarantor pursuant to the terms of the Indenture.
principal with respect to a 2028 Note means the principal of the 2028 Note plus the premium, if any, payable on the 2028 Note which is due or overdue or is to become due at the relevant time and any Additional Amounts in respect thereof.
Principal Property means any manufacturing or production plant located in the United States of America (including fixtures but excluding leases and other contract rights which might otherwise be deemed real property) owned by Delphi LLP or any Restricted Subsidiary, whether owned on the date hereof or thereafter, provided each such plant has a net book value at the date as of which the determination is being made of in excess of 1% of the Consolidated Total Assets of Delphi LLP and its Subsidiaries, other than any such plant which, in the opinion of the Board of Directors (evidenced by a certified board resolution thereof delivered to the Trustee), is not of material importance to the business conducted by Delphi LLP and its Subsidiaries taken as a whole. As of the Issue Date, neither the Company nor any Restricted Subsidiary owns any Principal Property. If the Company acquires property in the future that is Principal Property, it will be subject to Section 5.01.
Ratings Agency means Standard & Poors and Moodys or, if Standard & Poors or Moodys or either or both of them shall not make a rating on the 2028 Notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by Delphi LLP (as certified by a resolution of the Board of Directors) which shall be substituted for Standard & Poors or Moodys or either or both of them, as the case may be.
Refinance means, in respect of any Indebtedness, to refinance, extend, renew, refund, repay, prepay, redeem, defease or retire, or to issue other Indebtedness in exchange or replacement for, such Indebtedness, including, in any such case from time to time, after the discharge of the Indebtedness being Refinanced. Refinanced and Refinancing shall have correlative meanings.
Refinancing Indebtedness means Indebtedness that is incurred to Refinance (including pursuant to any defeasance or discharge mechanism) any Indebtedness of Delphi LLP or any Subsidiary existing on the Issue Date or incurred in compliance with the Indenture (including Indebtedness that Refinances Refinancing Indebtedness); provided, however, such Refinancing Indebtedness is incurred in an aggregate principal amount (or if incurred with original issue discount, an aggregate issue price) that is equal to or less than the aggregate principal amount of the Indebtedness being refinanced (or if issued with original issue discount, the aggregate accreted value) then outstanding (or that would be outstanding if the entire committed amount of any credit facility being Refinanced were fully drawn) (plus fees and expenses, including any premium and defeasance costs and accrued interest).
Restricted Subsidiary means any Domestic Subsidiary of Delphi LLP that directly owns any Principal Property.
Sale and Leaseback Transaction means an arrangement relating to property, plant or equipment now owned or hereafter acquired by Delphi LLP or a Restricted Subsidiary whereby Delphi LLP or a Restricted Subsidiary transfers such property to a Person and Delphi LLP or such Restricted Subsidiary leases it from such Person, other than (i) leases between Delphi LLP and a Subsidiary or
-5-
between Subsidiaries or (ii) any such transaction entered into with respect to any property, plant or equipment or any improvements thereto at the time of, or within 180 days after, the acquisition or completion of construction of such property, plant or equipment or such improvements (or, if later, the commencement of commercial operation of any such property, plant or equipment), as the case may be, to finance the cost of such property, plant or equipment or such improvements, as the case may be.
Significant Subsidiary means any Restricted Subsidiary that would be a Significant Subsidiary of Delphi LLP within the meaning of Rule 1-02(w)(1) or (2) under Regulation S-X promulgated by the SEC as in effect on the Issue Date.
Standard & Poors means Standard & Poors, a division of The McGraw-Hill Companies, Inc., and any successor to its rating business.
Subsidiary of any Person means any corporation, association, partnership or other business entity of which more than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by:
(1) | such Person, |
(2) | such Person and one or more Subsidiaries of such Person or |
(3) | one or more Subsidiaries of such Person. |
Unless otherwise specified herein or context otherwise requires, all references to any Subsidiary shall be to a Subsidiary of Delphi LLP. For the avoidance of doubt, BDWY, a Chinese corporation, is a Subsidiary of Delphi LLP pursuant to its governance structure as in effect on the Issue Date.
TIA means the Trust Indenture Act of 1939 (15 U.S.C. §§ 77aaa-77bbbb) as in effect on the Issue Date.
Voting Stock of a Person means all classes of Capital Stock or other interests (including partnership interests) of such Person then outstanding and normally entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof.
Section 1.02. Other Definitions.
Term |
Defined in Section | |
Acceleration Notice |
7.02 | |
Additional Amounts |
5.03 | |
Base Indenture |
Preamble | |
Calculation Date |
3.01 | |
Change in Tax Law |
3.02 | |
Change of Control |
5.04 | |
Change of Control Offer |
5.04 | |
Change of Control Triggering Event |
5.04 | |
Comparable Government Bond Rate |
3.01 | |
Comparable Government Bond |
3.01 | |
Depositary |
2.01 | |
Event of Default |
7.01 |
-6-
Term |
Defined in Section | |
Global Note |
2.01 | |
Indenture |
Preamble | |
Initial Lien |
5.01 | |
Interest Payment Date |
2.01 | |
Issuer |
Preamble | |
Permitted Liens |
5.01 | |
Relevant Jurisdiction |
5.03 | |
Successor Guarantor |
6.01 | |
Taxes |
5.03 | |
Tax Redemption Date |
3.02 | |
Third Supplemental Indenture |
Preamble | |
Trigger Period |
5.04 | |
Trustee |
Preamble | |
2028 Notes |
Preamble |
ARTICLE 2
TERMS AND CONDITIONS OF THE NOTES
Section 2.01. Terms of the Notes. The following terms relating to the 2028 Notes are hereby established:
(a) Designation, Maturity and Principal Amount. There is hereby authorized a series of Notes designated the 1.600% Senior Notes due 2028 initially offered in the aggregate principal amount of 500,000,000, which amount shall be as set forth in an Authentication Order for the authentication and delivery of such 2028 Notes pursuant to Section 2.02 of the Base Indenture.
(b) Form of the Notes. The 2028 Notes are to be substantially in the form of Exhibit A hereto. The 2028 Notes shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the Officer of the Issuer executing the same may determine with the approval of the Trustee.
(c) Note Guarantees. The 2028 Notes shall have the benefit of the Note Guarantees by the Guarantors executing this Third Supplemental Indenture and future Guarantors pursuant to Section 4.02 hereof.
(d) Additional 2028 Notes. The Issuer may, without notice to or the consent of the Holders of the 2028 Notes, issue Additional 2028 Notes having identical terms and conditions as the 2028 Notes, except for the issue date, issue price and first Interest Payment Date, in an unlimited aggregate principal amount. Any such additional notes will be part of the same series as the 2028 Notes, and will be treated as one class with such series of 2028 Notes, including, without limitation, for purposes of voting and redemptions; provided, however, that if such Additional 2028 Notes are not fungible with the other 2028 Notes for U.S. federal income tax purposes, such Additional 2028 Notes shall not have the same ISIN or Common Code number as the other 2028 Notes.
(e) Principal Payment. The 2028 Notes will mature on September 15, 2028.
(f) Interest Rate; Interest Payment Date; Computation of Interest. The 2028 Notes will bear interest at the rate of 1.600% per annum from the most recent Interest Payment Date (as defined below) to
-7-
which interest has been paid or duly provided for or, if no interest has been paid, from the Issue Date (or, in the case of Additional 2028 Notes, from date of issuance thereof) until the principal thereof becomes due and payable. The amount of interest payable for any period will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the date from which interest begins to accrue for the period (or from the Issue Date if no interest has been paid on the 2028 Notes) to, but excluding the next scheduled interest payment date. This payment convention is referred to as Actual/Actual (ICMA) as defined in the rulebook of the International Capital Markets Association.
Interest on the 2028 Notes is payable annually in arrears on September 15 of each year (each, an Interest Payment Date), commencing on September 15, 2017 (or such later first Interest Payment Date, in the case of Additional 2028 Notes), to the Person in whose name such 2028 Note is registered, at the close of business on the Regular Record Date for such interest installment, which shall be the close of business on September 1 (whether or not a Business Day), immediately preceding such Interest Payment Date, and at the foregoing respective rates on overdue principal. In the event that any Interest Payment Date is not a Business Day, then payment of the interest payable on such Interest Payment Date will be made on the next succeeding day which is a Business Day (and without any interest or other payment in respect of any such delay) with the same force and effect as if made on the Interest Payment Date such payment was originally payable.
(g) Place of Payment of Principal and Interest. Section 4.02 of the Base Indenture shall apply to the 2028 Notes.
(h) Optional Redemption. The 2028 Notes shall be redeemable as specified in Article 3 of this Third Supplemental Indenture and Article 3 of the Base Indenture.
(i) Mandatory Redemption. Except as set forth in Section 5.04 hereof, the Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the 2028 Notes.
(j) Denominations. The 2028 Notes shall be issuable only in registered form, without coupons, in minimum denominations of 100,000 and integral multiples of 1,000 in excess of thereof.
(k) Acceleration. 100% of the principal amount of the 2028 Notes shall be payable upon declaration of acceleration of the Stated Maturity thereof.
(l) Currency of the 2028 Notes. The 2028 Notes shall be denominated, and payment of principal and interest of the 2028 Notes shall be payable in euro. If the euro is unavailable to the Issuer due to the imposition of exchange controls or other circumstances beyond the Issuers control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the 2028 Notes will be made in U.S. dollars until the euro is again available to the Issuer or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second Business Day prior to the relevant payment date as determined by the Issuer in the Issuers sole discretion. Any payment in respect of the 2028 Notes so made in U.S. dollars will not constitute an event of default under the 2028 Notes or the Indenture. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.
-8-
(m) Currency of Payment. The principal of and interest on the 2028 Notes shall be payable in euro.
(n) Exchange or Conversion. The 2028 Notes shall not be exchangeable for or convertible into the ordinary shares of the Issuer or any other security.
(o) Additional Amounts. The Issuer will pay any additional amounts on the 2028 Notes as set forth in Section 5.03.
(p) Global Form; Definitive Form. The 2028 Notes shall be issued initially in the form of one or more permanent Global Notes in registered form, without coupons, substantially in the form herein below recited (each, a Global Note and collectively, the Global Notes), deposited with the Common Depository and registered in the name of the nominee of the Common Depository for the accounts of the Depositary, duly executed by the Issuer and authenticated by the Authenticating Agent as herein provided. The 2028 Notes may be issued in definitive form pursuant to the terms of the Base Indenture. The aggregate principal amount of each Global Note may from time to time be increased or decreased by adjustments made on the records of the Registrar as provided in Section 2.01(b) of the Base Indenture.
(q) Trustee; Registrar; Paying Agent; Authenticating Agent. Wilmington Trust, National Association shall initially act as Trustee. Deutsche Bank Trust Company Americas, a New York banking corporation, shall initially act as Registrar, Paying Agent and Authenticating Agent.
(r) Defeasance. Article 8 of the Base Indenture shall apply to the 2028 Notes.
(s) Depositary. The Depositary for any 2028 Notes issued as Global Notes shall initially be Euroclear and Clearstream (or any successors thereto) (the Depositary). The Common Depository for the 2028 Notes issued under this Third Supplemental Indenture shall initially be Deutsche Bank AG, London Branch.
(t) Events of Default; Covenants. The Events of Default in Section 6.01 of the Base Indenture and the additional Events of Default set forth in Section 7.01 of this Third Supplemental Indenture and the covenants set forth in Article 4 of the Base Indenture and Article 5 of this Third Supplemental Indenture shall apply to the 2028 Notes.
(u) Additional Terms. Other terms applicable to the 2028 Notes are as otherwise provided for below.
Section 2.02. Execution and Authentication. The 2028 Notes having an aggregate principal amount of 500,000,000 may, upon execution of this Third Supplemental Indenture, be executed by the Issuer and delivered to the Authenticating Agent for authentication, and the Authenticating Agent shall thereupon authenticate and deliver said 2028 Notes, upon receipt of an Authentication Order, signed by an Officer of the Issuer, without any further action by the Issuer, except as otherwise required by the Base Indenture.
Section 2.03. Valuation of Principal Amount of Securities. To the extent that any other securities are issued under the Indenture and denominated in a currency other than euro, the principal amount of the 2028 Notes and such other securities for purposes of any act, consent or waiver under the Indenture shall be determined as the dollar equivalent thereof, converted based on the spot rate (as determined by the Issuer in its sole discretion) at 11:00 a.m. on the Business Day before the record date for such act, waiver or consent (or, if there is no such record date, the date when such act, consent or waiver is taken).
-9-
ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.01. Optional Redemption.
(a) At any time prior to June 15, 2028, the Issuer may at its option redeem the 2028 Notes, in whole or in part, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 2028 Notes to be redeemed; and
(ii) the sum of the present value of (i) the redemption price (100% of the principal amount of the 2028 Notes to be redeemed) on June 15, 2028 and (ii) all required remaining scheduled interest payments due on the 2028 Notes to be redeemed through June 15, 2028 (not including any portion of such payments of interest accrued and unpaid to the Redemption Date) discounted to the Redemption Date on an annual basis (Actual/Actual ICMA) at the applicable Comparable Government Bond Rate plus 25 basis points,
plus accrued and unpaid interest on the principal amount of the 2028 Notes to be redeemed to, but not including, the Redemption Date. The Comparable Government Bond Rate will be calculated on the third Business Day next preceding the Redemption Date (the Calculation Date).
(b) If the 2028 Notes are redeemed at any time on or after June 15, 2028, the 2028 Notes may be redeemed at a redemption price equal to 100% of the principal amount of the 2028 Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
(c) Notice of any such redemption must be mailed by first-class mail to each Holders registered address, or delivered electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the Redemption Date.
(d) The following terms have the meanings given to them in this Section 3.01(d):
Comparable Government Bond Rate means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the Comparable Government Bond (as defined below) on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Issuer.
Comparable Government Bond means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Issuer, a German government bond whose maturity is closest to the maturity of the 2028 Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Issuer, determine to be appropriate for determining the Comparable Government Bond Rate.
(e) If the Issuer partially redeems the 2028 Notes, the 2028 Notes to be redeemed shall be selected in accordance with the applicable procedures of the Depositary, although no 2028 Notes less than 100,000 in original principal amount will be redeemed in part.
-10-
(f) Any redemption of 2028 Notes pursuant to this Section 3.01 shall be conducted in accordance with the applicable procedures set forth in Article 3 of the Base Indenture to the extent not otherwise set forth herein.
Section 3.02. Tax Redemption.
(a) The Issuer may redeem the 2028 Notes as a whole but not in part, at its option at any time prior to maturity, upon the giving of a written notice of redemption to the holders, with a copy to the Trustee, if it determines that, as a result of:
(i) any change in or amendment to the laws, or any regulations or rulings promulgated under the laws, of a Relevant Jurisdiction (as defined in Section 5.03) affecting taxation, or
(ii) any change in or amendment to an official position regarding the application or interpretation of the laws, regulations or rulings referred to above,
(b) which change or amendment is announced and becomes effective after the Issue Date (or, if the Relevant Jurisdiction becomes a Relevant Jurisdiction on a date after the Issue Date, after such later date) (each of the foregoing, a Change in Tax Law), the Issuer or any Guarantor is or will become obligated to pay Additional Amounts with respect to the 2028 Notes or the Note Guarantees on the next succeeding interest payment date, pursuant to Section 5.03 (but in the case of a Guarantor, only if the payments giving rise to such obligation cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts) and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Issuer or the Guarantor. The redemption price will be equal to 100% of the principal amount of the 2028 Notes plus accrued and unpaid interest to but excluding the date fixed for redemption (a Tax Redemption Date), and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders of the 2028 Notes on any record date occurring prior to the Tax Redemption Date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof). The date and the applicable redemption price will be specified in the notice of tax redemption. Notice of such redemption will be irrevocable, and must be mailed by first-class mail to each Holders registered address, or delivered electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of the 2028 Notes were actually due on such date. No such notice of redemption will be given unless, at the time such notification of redemption is given, such obligation to pay such Additional Amounts remains in effect.
(c) Prior to giving the notice of tax redemption, the Issuer will deliver to the Trustee:
(i) a certificate signed by a duly authorized officer stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred; and
(ii) an opinion of independent tax counsel of recognized standing qualified under the laws of the Relevant Jurisdiction, selected by the Issuer, to the effect that the Issuer is or would be obligated to pay Additional Amounts as a result of a Change in Tax Law.
(d) The foregoing provisions shall apply mutatis mutandis to any successor to the Issuer.
-11-
ARTICLE 4
NOTE GUARANTEES
Section 4.01. Note Guarantees. Each Guarantor hereby unconditionally and irrevocably expressly assumes, confirms and agrees to perform and observe each and any of the covenants, agreements, terms, conditions, obligations, appointments, duties, promises and liabilities of a Guarantor under the Base Indenture with respect to the 2028 Notes as if it were an original signatory thereto. The Note Guarantee of any Guarantor will be released without any further action required on the part of the Trustee or any holder: (1) upon (i) the sale or other disposition (including by way of consolidation, merger, dissolution or otherwise) of the Capital Stock of such Guarantor such that it is no longer a Subsidiary of the Issuer or (ii) the sale or other disposition of all or substantially all of the assets of such Guarantor; (2) when such Guarantor is no longer an obligor (whether as an issuer or guarantor) on any of Delphi Corporations senior notes outstanding on the Issue Date; or (3) upon legal or covenant defeasance or satisfaction and discharge of the 2028 Notes.
Section 4.02. Future Guarantees. (a) If any Domestic Subsidiary of the Issuer guarantees any of the Existing Notes, each such Subsidiary shall, within 30 days, execute and deliver to the Trustee a supplemental indenture pursuant to which such Domestic Subsidiary will provide a Note Guarantee to the 2028 Notes for so long as such Existing Notes remain outstanding and are guaranteed by such Subsidiary. For the avoidance of doubt, any such Note Guarantee referred to in this Section 4.02(a) shall be automatically released if (1) the Existing Notes cease to be outstanding or (2) the Existing Notes are no longer guaranteed by the Domestic Subsidiary providing such Note Guarantee.
(b) The Issuer, at its option, may cause any Subsidiary of the Issuer to become a Guarantor and if such Subsidiary is not otherwise required under the Indenture to provide a Note Guarantee to the 2028 Notes, the Issuer, at its option, may cause any such Note Guarantee to be released, subject to applicable law.
ARTICLE 5
COVENANTS
The following covenants will apply to the 2028 Notes in addition to the covenants in Article 4 of the Base Indenture:
Section 5.01. Limitation on Liens.
(a) Delphi LLP will not, and will not permit any Restricted Subsidiary to, directly or indirectly, incur or permit to exist any Lien (the Initial Lien) of any nature whatsoever on any Principal Property or Capital Stock of a Restricted Subsidiary, whether owned at the Issue Date or thereafter acquired, which Initial Lien secures any Indebtedness, without effectively providing that the 2028 Notes shall be secured equally and ratably with (or prior to) the obligations so secured for so long as such obligations are so secured other than the following (Permitted Liens):
(1) Liens securing Indebtedness under Credit Facilities in an aggregate principal amount not to exceed $2,075 million;
(2) pledges or deposits by such Person under workers compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (other than for the payment of Indebtedness) or leases, subleases, licenses or sublicenses to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure surety, stay, customs, replevin or appeal bonds to which such Person is a party, or deposits as security or for the payment of rent, in each case incurred in the ordinary course of business;
-12-
(3) Liens imposed by law, such as carriers, warehousemens and mechanics, materialmans, repairmans, landlords, workmans, suppliers and other like Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings or other Liens arising out of judgments or awards against such Person with respect to which such Person shall then be proceeding with an appeal or other proceedings for review;
(4) Liens for taxes, assessments or other governmental charges not yet due or payable or subject to penalties for non-payment or which are being contested in good faith by appropriate proceedings;
(5) Liens in favor of issuers of surety or performance bonds or letters of credit, bank guarantees, bankers acceptances or similar credit transactions issued pursuant to the request of and for the account of such Person in the ordinary course of its business;
(6) survey exceptions, encumbrances, easements or reservations of, or rights of others for, licenses, rights-of-way, sewers, electric lines, telegraph and telephone lines and other similar purposes, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties which do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;
(7) Liens securing Indebtedness incurred to finance the construction, purchase or lease of, or repairs, improvements or additions to, property of such Person; provided, however, that the Lien may not extend to any other property (other than accessions thereto, proceeds and products thereof and property related to the property being financed or through cross-collateralization of individual financings of equipment provided by the same lender) owned by such Person or any of its Subsidiaries at the time the Lien is incurred, and the Indebtedness (other than any interest thereon) secured by the Lien may not be incurred more than 270 days after the later of the acquisition, completion of construction, repair, improvement, addition or commencement of full operation of the property subject to the Lien;
(8) Liens existing on the Issue Date and extensions, renewals, refinancings and replacements of any such Liens (including any future Liens securing Indebtedness that Delphi LLP designates as a replacement of such Liens for purposes of this clause, even if such new Indebtedness is not issued concurrently with the repayment of the indebtedness so secured, the proceeds thereof are not used to repay such Indebtedness secured by such Liens or such Indebtedness is incurred for different purposes and by a different borrower) so long as the principal amount of Indebtedness (including for this purpose, revolving commitments under the Credit Agreement as in effect on the Issue Date immediately before the issuance of the 2028 Notes, which shall be deemed to be outstanding for these purposes even if undrawn) or other obligations secured thereby is not increased (other than to cover premiums, fees, accrued interest and any expenses of such extension, renewal, refinancing or replacement) and so long as such Liens are not extended to any other property of Delphi LLP or any of its Subsidiaries (other than pursuant to blanket lien or after acquired property clauses existing in the applicable agreements (including any obligation to have new guarantors provide Liens on the same assets owned by it));
(9) Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided, however, that such Liens are not created,
-13-
incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary; provided further, however, that such Liens do not extend to any other property owned by such Person or any of its Subsidiaries, except proceeds and products thereof and improvements thereon or pursuant to after acquired property clauses existing in the applicable agreements at the time such Person becomes a Subsidiary which do not extend to property transferred to such Person by Delphi LLP or a Restricted Subsidiary;
(10) Liens on property at the time such Person or any of its Subsidiaries acquires the property, including any acquisition by means of a merger or consolidation with or into such Person or any Subsidiary of such Person; provided, however, that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such acquisition; provided further, however, that the Liens do not extend to any other property owned by such Person or any of its Subsidiaries other than proceeds or products thereof and accessions thereto;
(11) Liens securing Indebtedness or other obligations of Delphi LLP or a Subsidiary owing to Delphi LLP or a Subsidiary of Delphi LLP;
(12) Liens to secure any Refinancing (or successive Refinancings) as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (7), (9) and (10); provided, however, that:
(A) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements, accessions, proceeds, dividends or distributions in respect thereof) and
(B) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of:
(i) the outstanding principal amount or, if greater, committed amount of the indebtedness secured by Liens described under clauses (7), (9) or (10) at the time the original Lien became a Permitted Lien under the Indenture; and
(ii) an amount necessary to pay any fees and expenses, including premiums, related to such Refinancings;
(13) judgment Liens not giving rise to an Event of Default;
(14) Liens securing Indebtedness consisting of (A) the financing of insurance premiums with the providers of such insurance or their affiliates and (B) take-or-pay obligations contained in supply arrangements in the ordinary course of business; and
(15) other Liens to secure Indebtedness as long as the amount of outstanding Indebtedness secured by Liens incurred pursuant to this clause (15), when aggregated with the amount of Attributable Debt outstanding and incurred in reliance on Section 5.02(e), does not exceed 15.0% of Consolidated Total Assets at the time any such Lien is granted; provided, however, notwithstanding whether this clause (15) would otherwise be available to secure Indebtedness, Liens securing Indebtedness originally secured pursuant to this clause (15) may secure Refinancing Indebtedness in respect of such Indebtedness and such Refinancing Indebtedness shall be deemed to have been secured pursuant to this clause (15).
-14-
(b) Any Lien created for the benefit of the Holders of the 2028 Notes pursuant to Section 5.01(a) shall provide by its terms that such Lien shall be automatically and unconditionally released and discharged upon the release and discharge of the Initial Lien.
(c) For purposes of determining compliance with this Section 5.01, (A) a Lien securing an item of Indebtedness need not be permitted solely by reference to one category of permitted Liens described in the definition of Permitted Liens but may be permitted in part under any combination thereof and (B) in the event that a Lien securing an item of Indebtedness (or any portion thereof) meets the criteria of one or more of the categories of permitted Liens described in the definition of Permitted Liens, Delphi LLP shall, in its sole discretion, classify or reclassify, or later divide, classify or reclassify, such Lien securing such item of Indebtedness (or any portion thereof) in any manner that complies with this covenant and will only be required to include the amount and type of such Lien or such item of Indebtedness secured by such Lien in one of the clauses of the definition of Permitted Liens and such Lien securing such item of Indebtedness will be treated as being incurred or existing pursuant to only one of such clauses.
Section 5.02. Limitation on Sale/Leaseback Transactions. Delphi LLP will not, and will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback Transaction with respect to any Principal Property unless:
(a) the Sale and Leaseback Transaction is solely with Delphi LLP or a Subsidiary of Delphi LLP;
(b) the lease is for a period not in excess of 24 months, including renewals;
(c) Delphi LLP or such Restricted Subsidiary would (at the time of entering into such arrangement) be entitled as described in clauses (1) through (14) of the definition of Permitted Liens, without equally and ratably securing the 2028 Notes then outstanding under the Indenture, to create, incur, issue, assume or guarantee Indebtedness secured by a Lien on such property in the amount of the Attributable Debt arising from such Sale and Leaseback Transaction;
(d) Delphi LLP or such Restricted Subsidiary within 360 days after the sale of such Principal Property in connection with such Sale and Leaseback Transaction is completed, applies an amount equal to the net proceeds of the sale of such Principal Property to (i) the permanent retirement of 2028 Notes, other Indebtedness of the Issuer ranking on a parity with the 2028 Notes or Indebtedness of Delphi LLP or a Subsidiary of Delphi LLP or (ii) the purchase of property; or
(e) the Attributable Debt of Delphi LLP and its Restricted Subsidiaries in respect of such Sale and Leaseback Transaction and all other Sale and Leaseback Transactions entered into after the Issue Date with respect to Principal Property (other than any such Sale and Leaseback Transaction as would be permitted as described in clauses (a) through (d) above), plus the aggregate principal amount of Indebtedness secured by Liens on Principal Properties then outstanding (not including any such Indebtedness secured by Liens described in clauses (1) through (14) of the definition of Permitted Liens) which do not equally and ratably secure such outstanding 2028 Notes (or secure such outstanding 2028 Notes on a basis that is prior to other Indebtedness secured thereby), would not exceed 15% of Consolidated Total Assets.
Section 5.03. Payments of Additional Amounts.
(a) Payments made by the Issuer, a Guarantor or a Paying Agent, as applicable, on the 2028 Notes or in respect of a Note Guarantee will be made free and clear of, and without withholding or
-15-
deduction for or on account of, any present or future income, stamp or other tax, duty, levy, impost, assessment or other governmental charge of any nature whatsoever (Taxes), unless the Issuer, a Guarantor or a Paying Agent is required to withhold or deduct Taxes by law.
(b) If any withholding or deduction for or on account of Taxes imposed or levied by or on behalf of the United States, the United Kingdom, Jersey, any other jurisdiction in which the Issuer or any Guarantor is incorporated, organized, engaged in business or otherwise resident for tax purposes, or any other jurisdiction from or through which such payment is made, or in each case any political subdivision or taxing authority or agency thereof or therein (each, a Relevant Jurisdiction) is at any time required by law to be made from any payment made with respect to the 2028 Notes or the Note Guarantee, the Issuer or the applicable Guarantor, as applicable, will pay such additional amounts (Additional Amounts) on the 2028 Notes or in respect of the applicable Note Guarantee as may be necessary so that the net amount received by each holder of the 2028 Notes (including Additional Amounts) after such withholding or deduction will not be less than the amount the holder would have received if such Taxes had not been withheld or deducted; provided that no Additional Amounts will be payable with respect to Taxes:
(i) | that would not have been imposed but for the Holder or the beneficial owner of such 2028 Note (or a fiduciary, settlor, beneficiary, member or shareholder of, or possessor of a power over, such Holder or beneficial owner, if such Holder or beneficial owner is an estate, trust, partnership or corporation) being considered as having a present or former connection with a Relevant Jurisdiction (other than a connection arising solely as a result of the acquisition, ownership or disposition of the 2028 Notes, the receipt of any payment under or with respect to the 2028 Notes or any Note Guarantee, or the exercise or enforcement of any rights under or with respect to the 2028 Notes, the Indenture or any Note Guarantee), including, without limitation, such Holder or beneficial owner (or such fiduciary, settlor, beneficiary, member, shareholder or possessor) being or having been a citizen or resident thereof or treated as a resident thereof or domiciled therein or a national thereof or being or having been engaged in a trade or business therein or having or having had a permanent establishment therein; |
(ii) | that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the Relevant Jurisdiction of the Holder or beneficial owner, if compliance is required by statute, by regulation of the Relevant Jurisdiction by an applicable income tax treaty to which the Relevant Jurisdiction is a party as a precondition to exemption from such Tax; |
(iii) | payable other than by withholding from payments of principal of or interest on the 2028 Notes or from payments in respect of a Note Guarantee; |
(iv) | that would not have been imposed but for a change in law, regulation or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later; |
(v) | that are estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property or similar Taxes; |
(vi) | that are imposed on a payment to an individual and that is required to be made pursuant to, or to any law implementing or complying with, or introduced in order to conform to, any European Union Directive on the taxation of savings; |
-16-
(vii) | required to be withheld by any Paying Agent from any payment of principal of or interest on any 2028 Note, if such payment can be made without such withholding by at least one other Paying Agent; |
(viii) | that would not have been imposed but for the presentation by the holder of any 2028 Note, where presentation is required, for payment on a date more than 30 days after the date on which such payment became due and payable or the date on which payment thereof was duly provided for, whichever occurred later (except to the extent that the holder would have been entitled to Additional Amounts had the 2028 Note been presented on the last day of such 30-day period); |
(ix) | that are U.S. federal income Taxes imposed by reason of the Holder or beneficial owner of the 2028 Notes (i) being considered as (a) being or having been a controlled foreign corporation for U.S. federal income tax purposes or a corporation that has accumulated earnings to avoid U.S. federal income tax; (b) being or having been a 10-percent shareholder of the Issuer as defined in section 871(h)(3) of the Code (or any amended or successor provision); or (c) being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business or (ii) failing to provide an applicable IRS Form W-8 certifying as to such persons non-U.S. status; |
(x) | that are imposed under Sections 1471 through 1474 of the Code as of the Issue Date (or any amended or successor provision that is substantively comparable), any current or future regulations or official interpretations thereof, any agreement entered into pursuant to Section 1471(b) of the Code as of the Issue Date (or any amended or successor provision that is substantively comparable) 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; or |
(xi) | in the case of any combination of clauses (i), (ii), (iii), (iv), (v), (vi), (vii), (viii), (ix) and (x); |
nor shall Additional Amounts be paid with respect to any payment of the principal of or interest, if any, on any 2028 Note or any payment in respect of a Note Guarantee to any such holder who is a fiduciary or a partnership or a beneficial owner that is not the sole beneficial owner of such payment to the extent a beneficiary or settlor with respect to such fiduciary or a member of such partnership or a beneficial owner would not have been entitled to such Additional Amounts had it been the holder of the 2028 Note.
(c) The Issuer, a Guarantor or the Paying Agent, as applicable, will (i) make any required withholding or deduction, and (ii) remit the full amount deducted or withheld by it to the Relevant Jurisdiction in accordance with applicable law.
(d) All references in this Indenture, other than in Section 2.01(s) of this Third Supplemental Indenture and Sections 8.02, 8.03 and 8.06 of the Base Indenture, to the payment of the principal or interest, if any, on or the net proceeds received on the sale or exchange of, any 2028 Notes or any payment made under the Note Guarantee shall be deemed to include Additional Amounts to the extent that, in that context, Additional Amounts are, were or would be payable.
(e) In addition, the Issuer shall pay any present or future stamp, issue, registration, court, documentary, excise, property, or similar Taxes (i) imposed by any Relevant Jurisdiction in respect of the execution, issuance, delivery, or registration of the 2028 Notes, any Note Guarantee, the Indenture, or any other document or instrument referred to therein, or the receipt of any payments with respect to the 2028 Notes, or (ii) imposed by any jurisdiction in respect of the enforcement of the 2028 Notes, any Note Guarantee, the Indenture, or any other document or instrument referred to therein.
-17-
(f) The Issuers and a Guarantors obligations to pay Additional Amounts if and when due will survive the termination of the Indenture and the payment of all other amounts in respect of the 2028 Notes and shall apply mutatis mutandis to any successor of the Issuer or any Guarantor, and to any jurisdiction in which such successor is incorporated, organized, engaged in business or otherwise resident for tax purposes, and any political subdivision or governmental authority thereof or therein.
Section 5.04. Change of Control Triggering Event. Upon the occurrence of a Change of Control Triggering Event, each Holder will have the right to require the Issuer to purchase all or any part of such Holders 2028 Notes at a purchase price in cash equal to 101% of the principal amount thereof plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest due on the relevant interest payment date).
Change of Control means the occurrence of any of the following:
(1) any transaction occurs (including a merger or consolidation of the Issuer) following which any person (as such term is used in Sections 13(d) and 14(d) of the Exchange Act) is the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power of the Voting Stock of the Issuer; or
(2) sale, lease or transfer (for the avoidance of doubt, other than a transfer to the Issuer or one of its Subsidiaries), in one or a series of related transactions, of all or substantially all the assets of the Issuer and its Subsidiaries, taken as a whole, to a Person in which any person (as defined above) holds or acquires beneficial ownership (within the meaning of Rule 13d-3 under the Exchange Act) of 50% or more of the total voting power of the Voting Stock of such transferee Person.
Change of Control Triggering Event means (1) the ratings of the 2028 Notes are downgraded by each of the Ratings Agencies during the 60-day period (the Trigger Period) commencing on the earlier of (i) the occurrence of a Change of Control or (ii) the first public announcement of the occurrence of a Change of Control or the Issuers intention to effect a Change of Control (which Trigger Period will be extended so long as the ratings of the 2028 Notes are under publicly announced consideration for possible downgrade by any of the Ratings Agencies) and (2) the 2028 Notes are rated below an Investment Grade Rating by each of the Ratings Agencies on any date during the Trigger Period; provided that (x) a Change of Control Triggering Event will not be deemed to have occurred in respect of a particular Change of Control if each Ratings Agency does not publicly announce or confirm or inform the Trustee in writing at the Issuers request that the reduction was the result of the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Change of Control Triggering Event) and (y) the Trigger Period will terminate with respect to each Ratings Agency when such Ratings Agency takes action (including affirming its existing ratings) with respect to such Change of Control. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.
Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Issuer becomes a direct or indirect Subsidiary of a holding company and (2) no person (as defined above) (other than a holding company) owns, directly or indirectly, a majority of the voting power of the Equity Interests of such holding company.
-18-
Within 30 days following any Change of Control Triggering Event, the Issuer shall (unless prior to such date such Change of Control Triggering Event ceases to exist) deliver by mail or electronic means a notice to each Holder with a copy to the Trustee (the Change of Control Offer), stating:
(1) that a Change of Control Triggering Event has occurred and that such Holder has the right to require the Issuer to purchase all or a portion of such Holders 2028 Notes at a purchase price in cash equal to 101% of the principal amount thereof, plus accrued and unpaid interest to the date of purchase (subject to the right of Holders of record on the relevant record date to receive interest on the relevant interest payment date);
(2) the circumstances and relevant facts and financial information regarding such Change of Control Triggering Event;
(3) the purchase date (which shall be no earlier than 30 days nor later than 60 days from the date such notice is delivered); and
(4) the instructions determined by the Issuer, consistent with this covenant, that a Holder must follow in order to have its 2028 Notes purchased.
The Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering 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 this Section 5.04 and purchases all 2028 Notes validly tendered and not withdrawn under such Change of Control Offer. In addition, the Issuer will not be required to make a Change of Control Offer upon a Change of Control Triggering Event if the 2028 Notes have been or are called for redemption by the Issuer prior to it being required to deliver notice of the Change of Control Offer, and thereafter redeems all 2028 Notes called for redemption in accordance with the terms set forth in such redemption notice. Notwithstanding anything to the contrary contained herein, a revocable Change of Control Offer may be made in advance of a Change of Control Triggering Event, conditioned upon the consummation of the relevant Change of Control, if a definitive agreement is in place for such Change of Control at the time the Change of Control Offer is made.
The Issuer will comply, to the extent applicable, with the requirements of Section 14(e) of the Exchange Act and any other securities laws or regulations in connection with the purchase of 2028 Notes pursuant to this Section 5.04. To the extent that the provisions of any securities laws or regulations conflict with provisions of this Section 5.04, the Issuer will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 5.04 by virtue thereof.
Notwithstanding any provisions in the Base Indenture to the contrary, but subject to Section 6.07 of the Base Indenture, the Issuers obligations to make a Change of Control Offer as a result of a Change of Control Triggering Event may be waived or modified with the written consent of the Holders of a majority in principal amount of the then outstanding 2028 Notes.
-19-
ARTICLE 6
CONSOLIDATION, MERGER AND SALE OF ASSETS
Section 6.01. Consolidation, Merger and Sale of Assets of Guarantors. (a) Delphi LLP will not and will not permit any other Guarantor to, directly or indirectly, consolidate with or merge with or into, or convey, transfer or lease all or substantially all of its assets in one or a series of related transactions to, any Person unless:
(1)(A) the resulting, surviving or transferee Person (the Successor Guarantor) will be a corporation, limited liability partnership, limited liability company, limited company, or other similar organization (and in the case of any such transaction involving Delphi LLP, such Successor Guarantor shall be organized under the laws of the jurisdiction of organization of the United States of America (or any state thereof or the District of Columbia), the United Kingdom, Jersey and any other jurisdiction in the Channel Islands, any member state of the European Union as in effect on the Issue Date, Switzerland, Bermuda, The Cayman Islands or Singapore), and such Person (if not such Guarantor) will expressly assume, by a supplemental indenture, executed and delivered to the Trustee, all the obligations of such Guarantor under its Note Guarantee;
(B) immediately after giving effect to such transaction, no Default shall have occurred and be continuing; and
(C) the Issuer will have delivered to the Trustee an Officers Certificate and an Opinion of Counsel, each stating that such consolidation, merger or transfer and such supplemental indenture (if any) comply with the Indenture; or
(2) such Guarantor will be released from its Note Guarantee in connection therewith as provided in the Indenture.
(b) Notwithstanding Section 5.02 of the Base Indenture or clause (a) of this Section 6.01:
(A) any Subsidiary of Delphi LLP may consolidate with, merge into or transfer all or part of its properties and assets to the Issuer, any Guarantor or any Subsidiary of Delphi LLP; and
(B) the Issuer and any Guarantor may merge with an Affiliate organized solely for the purpose of reorganizing the Issuer or such Guarantor in another jurisdiction.
ARTICLE 7
EVENTS OF DEFAULT
Section 7.01. Events of Default. In addition to the Events of Default set forth in Section 6.01 of the Base Indenture, the following is an Event of Default with respect to the 2028 Notes:
(1) the failure by the Issuer or any Note Guarantor to comply with its obligations under Section 6.01 of this Third Supplemental Indenture;
(2) the failure by the Issuer or any Restricted Subsidiary to comply for 60 days after notice with any of its obligations under Section 5.04 of this Third Supplemental Indenture (in each case, other than a failure to purchase 2028 Notes); and
-20-
(3) any Note Guarantee of the 2028 Notes of Delphi LLP or any Significant Subsidiary (or group of Subsidiaries that together would constitute a Significant Subsidiary) ceases to be in full force and effect in all material respects (except as contemplated by the terms thereof) or any Guarantor denies or disaffirms such Guarantors obligations under the Indenture or any Note Guarantee of the 2028 Notes and such Default continues for 10 days after receipt of the notice as specified in the Indenture.
However, a default under clauses (2) or (3) will not constitute an Event of Default with respect to any 2028 Notes until the Trustee notifies the Issuer, or the Holders of at least 25% in principal amount of the outstanding 2028 Notes and notes of all series affected thereby notify the Issuer and the Trustee, of the default and the Issuer or the Guarantor, as applicable, does not cure such default within the time specified in clauses (2) or (3) hereof after receipt of such notice.
Section 7.02. Limitations on Suits. With respect to the 2028 Notes, the first sentence of Section 6.06 of the Base Indenture shall be amended by deleting the A at the beginning of the sentence and replacing it with the following: Except to enforce the right to receive payment of principal, premium (if any) or interest when due, a.
ARTICLE 8
AMENDMENTS AND WAIVERS
Section 8.01. Without Consent of Holder. In addition to the provisions of Section 9.01 of the Base Indenture, the Issuer, the Guarantors and the Trustee may, as applicable, amend or supplement this Third Supplemental Indenture, the Note Guarantees of the 2028 Notes or the 2028 Notes, without the consent of any Holder of a 2028 Note to:
(a) convey, transfer, assign, mortgage or pledge as security for the 2028 Notes any property or assets in accordance with Section 5.01 of this Third Supplemental Indenture and confirm or evidence any release thereof permitted by the Indenture.
ARTICLE 9
MISCELLANEOUS
Section 9.01. Ratification of Base Indenture. The Base Indenture, as supplemented by this Third Supplemental Indenture, is in all respects ratified and confirmed, and this Third Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 9.02. Governing Law. This Third Supplemental Indenture and the 2028 Notes shall be governed by and construed in accordance with the laws of the State of New York without regard to conflicts of laws.
Section 9.03. Separability. In case any one or more of the provisions contained in this Third Supplemental Indenture or in the 2028 Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provisions of this Third Supplemental Indenture or of the 2028 Notes, but this Third Supplemental Indenture and the 2028 Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.
Section 9.04. Counterparts. This Third Supplemental Indenture may be executed in any number of counterparts each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
-21-
[Signature Pages Follow]
-22-
IN WITNESS WHEREOF, the parties hereto have caused this Third Supplemental Indenture to be duly executed as of the day and year first above written.
ISSUER: | ||
DELPHI AUTOMOTIVE PLC | ||
By: | /s/ Bradley A. Spiegel | |
Name: Bradley A. Spiegel | ||
Title: Vice President, Business Planning | ||
and Finance Operations |
GUARANTORS: | ||
DELPHI CORPORATION | ||
By: | /s/ Bradley A. Spiegel | |
Name: Bradley A. Spiegel | ||
Title: Vice President, Business Planning | ||
and Finance Operations |
DELPHI AUTOMOTIVE LLP | ||
By: | /s/ Bradley A. Spiegel | |
Name: Bradley A. Spiegel | ||
Title: Authorized Representative |
DELPHI AUTOMOTIVE HOLDINGS US LIMITED | ||
By: | /s/ Bradley A. Spiegel | |
Name: Bradley A. Spiegel | ||
Title: Authorized Representative |
-23-
TRUSTEE: | ||
WILMINGTON TRUST, NATIONAL ASSOCIATION, as Trustee | ||
By: | /s/ Boris Treyger | |
Name: Boris Treyger | ||
Title: Vice President |
-24-
REGISTRAR, PAYING AGENT | ||
AND AUTHENTICATING AGENT: | ||
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Registrar, Paying Agent and Authenticating Agent, | ||
By: | Deutsche Bank National Trust Company | |
By: | /s/ Irina Golovashchuk | |
Name: Irina Golovashchuk | ||
Title: Vice President |
By: | /s/ Jeffrey Schoenfeld | |
Name: Jeffrey Schoenfeld | ||
Title: Vice President |
-25-
EXHIBIT A
[FORM OF FACE OF NOTE]
[Global Note Legend]
THIS GLOBAL NOTE IS REGISTERED IN THE NAME OF A COMMON DEPOSITORY (AS DEFINED IN THE INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE. THIS GLOBAL NOTE IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF ANY PERSON OTHER THAN SUCH COMMON DEPOSITORY OR ITS NOMINEE ONLY IN LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE COMMON DEPOSITORY TO A NOMINEE OF THE COMMON DEPOSITORY OR BY A NOMINEE OF THE COMMON DEPOSITORY TO THE COMMON DEPOSITORY OR ANOTHER NOMINEE OF THE COMMON DEPOSITORY OR BY THE COMMON DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR COMMON DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR COMMON DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK S.A./N.V. (EUROCLEAR), AND CLEARSTREAM BANKING, SOCIÉTÉ ANONYME (CLEARSTREAM AND TOGETHER WITH EUROCLEAR, EUROCLEAR/ CLEARSTREAM) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF BT GLOBENET NOMINEES LIMITED OR SUCH OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/ CLEARSTREAM (AND ANY PAYMENT IS MADE TO BT GLOBENET NOMINEES LIMITED OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, BT GLOBENET NOMINEES LIMITED, HAS AN INTEREST HEREIN.
A-1
Common Code:
ISIN:
GLOBAL NOTE
1.600% Senior Notes due 2028
No. | [ ] | |||
DELPHI AUTOMOTIVE PLC
promises to pay to BT Globenet Nominees Limited, or registered assigns,
the principal sum of EUROS on September 15, 2028, as such amount may be changed from time to time pursuant to the Schedule of Exchanges of Interests attached hereto.
Interest Payment Date: September 15
Record Date: September 1
A-2
DELPHI AUTOMOTIVE PLC | ||
By: | ||
Name: | ||
Title: |
A-3
This is one of the 2028 Notes referred to
in the within-mentioned Third Supplemental Indenture:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Authenticating Agent | ||
By: | ||
Name: | ||
Title: |
Dated: , 20
A-4
[Form of reverse side of 2028 Note]
1.600% Senior Note due 2028
Capitalized terms used herein shall have the meanings assigned to them in the Indenture referred to below unless otherwise indicated.
1. INTEREST. Delphi Automotive PLC (the Issuer) promises to pay interest on the principal amount of this 2028 Note at a rate per annum of 1.600% from September 15, 2016 until maturity or pursuant to Section 7.02 of the Third Supplemental Indenture. The Issuer will pay interest on this 2028 Note annually in arrears on September 15 of each year, commencing on September 15, 2017, or, if any such day is not a Business Day, on the next succeeding Business Day (each, an Interest Payment Date). The Issuer will make each interest payment to the Holder of record of this 2028 Note on the immediately preceding September 1 (the Regular Record Date). Interest on this 2028 Note will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including September 15, 2016. The Issuer will pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue principal and premium, if any, from time to time on demand at the rate borne by this 2028 Note; it shall pay interest (including post-petition interest in any proceeding under any Bankruptcy Law) on overdue installments of interest (without regard to any applicable grace periods) from time to time on demand at the rate borne by this 2028 Note. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the date from which interest begins to accrue for the period (or from the Issue Date if no interest has been paid on the 2028 Notes) to, but excluding the next scheduled interest payment date, pursuant to the Actual/Actual (ICMA) payment convention.
2. METHOD OF PAYMENT. The Issuer will pay interest on this 2028 Note to the Person who is the registered Holder of this 2028 Note at the close of business on the Record Date (whether or not a Business Day) next preceding the Interest Payment Date, even if this 2028 Note is cancelled after such record date and on or before such Interest Payment Date, except as provided in Section 2.13 of the Base Indenture with respect to defaulted interest. Payment of interest may be made by check mailed to the Holders at their addresses set forth in the Note Register of Holders, provided that (a) all payments of principal, premium, if any, and interest on, 2028 Notes represented by Global Notes registered in the name of or held by the Common Depository or its nominee will be made by wire transfer of immediately available funds to the accounts specified by the Holder or Holders thereof and (b) all payments of principal, premium, if any, and interest with respect to Certificated Notes will be made by wire transfer to an account maintained by the payee with a bank in the United Kingdom if such Holder elects payment by wire transfer by giving written notice to the Trustee or the Paying Agent to such effect designating such account no later than 30 days immediately preceding the relevant due date for payment (or such other date as the Trustee or the Paying Agent may accept in its discretion). Such payment shall be in euro. If the euro is unavailable to the Issuer due to the imposition of exchange controls or other circumstances beyond the Issuers control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the 2028 Notes will be made in U.S. dollars until the euro is again available to the Issuer or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the then most recent U.S. dollar/euro exchange rate available on or prior to the second Business Day prior to the relevant payment date as determined by the Issuer in the Issuers sole discretion.
A-5
3. AUTHENTICATING AGENT, PAYING AGENT AND REGISTRAR. Initially, Deutsche Bank Trust Company Americas will act as Authenticating Agent, Paying Agent and Registrar. The Issuer may change any Authenticating Agent, Paying Agent or Registrar without notice to the Holders. Delphi LLP or any of its Subsidiaries may act in any such capacity.
4. INDENTURE. The Issuer issued the 2028 Notes under the Senior Indenture (the Base Indenture), dated as of March 10, 2015, among the Issuer, the Guarantors party thereto, Wilmington Trust, National Association, as trustee (the Trustee) and Deutsche Bank Trust Company Americas, a New York banking corporation, as Registrar, Paying Agent and Authenticating Agent. The Issuer shall be entitled to issue Additional 2028 Notes pursuant to the Base Indenture. The terms of the 2028 Notes include those stated in the Base Indenture and those made part of the Base Indenture by reference to the third supplemental indenture, among the Issuer, the Guarantors party thereto, the Trustee and the Registrar and Paying Agent, dated as of September 15, 2016 (the Third Supplemental Indenture and together with the Base Indenture, the Indenture), setting forth the additional terms of the 2028 Notes pursuant to Section 2.03 of the Base Indenture and the provisions of the Trust Indenture Act of 1939, as amended (the Trust Indenture Act). The 2028 Notes are subject to all such terms, and Holders are referred to the Indenture and the Trust Indenture Act for a statement of such terms. To the extent any provision of this 2028 Note conflicts with the express provisions of the Indenture and those other provisions forming a part thereof with respect to the 2028 Notes, the provisions of the Indenture and such other provisions with respect to the 2028 Notes shall govern and be controlling.
5. OPTIONAL REDEMPTION. At any time prior to June 15, 2028, the Issuer may at its option redeem the 2028 Notes, in whole or in part, at a redemption price equal to the greater of:
(i) 100% of the principal amount of the 2028 Notes to be redeemed; and
(ii) the sum of the present value of (i) the redemption price (100% of the principal amount of the 2028 Notes to be redeemed) on June 15, 2028 and (ii) all required remaining scheduled interest payments due on the 2028 Notes to be redeemed through June 15, 2028 (not including any portion of such payments of interest accrued and unpaid to the Redemption Date) discounted to the Redemption Date on an annual basis (Actual/Actual ICMA) at the applicable Comparable Government Bond Rate plus 25 basis points,
plus accrued and unpaid interest on the principal amount of the 2028 Notes to be redeemed to, but not including, the Redemption Date. The Comparable Government Bond Rate will be calculated on the Calculation Date.
If the 2028 Notes are redeemed at any time on or after June 15, 2028, the 2028 Notes may be redeemed at a redemption price equal to 100% of the principal amount of the 2028 Notes to be redeemed plus accrued and unpaid interest thereon to, but not including, the Redemption Date.
Notice of such redemption must be mailed by first-class mail to each Holders registered address, or delivered electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the Redemption Date.
6. TAX REDEMPTION. The Issuer may redeem the 2028 Notes as a whole but not in part, at its option at any time prior to maturity, upon the giving of a written notice of redemption to the holders, with a copy to the Trustee, if it determines that, as a result of:
A-6
(i) any change in or amendment to the laws, or any regulations or rulings promulgated under the laws, of a Relevant Jurisdiction affecting taxation, or
(ii) any change in or amendment to an official position regarding the application or interpretation of the laws, regulations or rulings referred to above, which change or amendment is announced and becomes effective after the Issue Date (or, if the Relevant Jurisdiction becomes a Relevant Jurisdiction on a date after the Issue Date, after such later date) (each of the foregoing, a Change in Tax Law), the Issuer or any Guarantor is or will become obligated to pay Additional Amounts with respect to the 2028 Notes or the Note Guarantees on the next succeeding interest payment date, pursuant to Section 5.03 (but in the case of a Guarantor, only if the payments giving rise to such obligation cannot be made by the Issuer or another Guarantor without the obligation to pay Additional Amounts) and the payment of such Additional Amounts cannot be avoided by the use of reasonable measures available to the Issuer or the Guarantor. The redemption price will be equal to 100% of the principal amount of the 2028 Notes plus accrued and unpaid interest to but excluding the date fixed for redemption (a Tax Redemption Date), and all Additional Amounts (if any) then due or which will become due on the Tax Redemption Date as a result of the redemption or otherwise (subject to the right of Holders of the 2028 Notes on any record date occurring prior to the Tax Redemption Date to receive interest due on the relevant interest payment date and Additional Amounts (if any) in respect thereof). The date and the applicable redemption price will be specified in the notice of tax redemption. Notice of such redemption will be irrevocable, and must be mailed by first-class mail to each Holders registered address, or delivered electronically if held by any depositary in accordance with such depositarys customary procedures, not less than 15 nor more than 60 days prior to the earliest date on which the Issuer would be obligated to pay such Additional Amounts if a payment in respect of the 2028 Notes were actually due on such date. No such notice of redemption will be given unless, at the time such notification of redemption is given, such obligation to pay such Additional Amounts remains in effect.
Prior to giving the notice of tax redemption, the Issuer will deliver to the Trustee:
(i) a certificate signed by a duly authorized officer stating that the Issuer is entitled to effect the redemption and setting forth a statement of facts showing that the conditions precedent to the right of the Issuer to so redeem have occurred; and
(ii) an opinion of independent tax counsel of recognized standing qualified under the laws of the Relevant Jurisdiction, selected by the Issuer, to the effect that the Issuer is or would be obligated to pay Additional Amounts as a result of a Change in Tax Law.
The foregoing provisions shall apply mutatis mutandis to any successor to the Issuer.
7. MANDATORY REDEMPTION. Except as set forth in Section 5.04 of the Third Supplemental Indenture, the Issuer shall not be required to make mandatory redemption or sinking fund payments with respect to the 2028 Notes.
8. NOTICE OF REDEMPTION. At least 15 days but not more than 60 days before a Redemption Date, the Issuer shall mail or cause to be mailed, by first class mail to each Holders registered address, or deliver electronically if held by any depositary in accordance with such depositarys customary procedures, a notice of redemption to each Holder whose 2028 Notes are to be redeemed. Any redemption and notice thereof may, in the Issuers discretion, be subject to the satisfaction of one or more conditions precedent.
A-7
9. OFFERS TO REPURCHASE. Upon the occurrence of a Change of Control Triggering Event, the Issuer shall make a Change of Control Offer in accordance with Section 5.04 of the Third Supplemental Indenture.
10. DENOMINATIONS, TRANSFER, EXCHANGE. The 2028 Notes are in registered form without coupons in denominations of 100,000 and integral multiples of 1,000 in excess thereof. The transfer of 2028 Notes may be registered and 2028 Notes may be exchanged as provided in the Indenture. The Registrar and the Trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and the Issuer may require Holders to pay any transfer tax or other similar governmental charge payable in connection with such transfer and exchange that are required by law or permitted by the Indenture. The Registrar shall not be required to register the transfer of or exchange of (a) any 2028 Note selected for redemption in whole or in part pursuant to Article 3 of the Base Indenture, except the unredeemed portion of any such 2028 Note being redeemed in part, or (b) any such 2028 Note for a period beginning 15 days before the mailing of a notice of an offer to repurchase or redeem such 2028 Notes or 15 days before an Interest Payment Date (whether or not an Interest Payment Date or other date determined for the payment of interest), and ending on such mailing date or Interest Payment Date, as the case may be.
11. PERSONS DEEMED OWNERS. The registered Holder of this 2028 Note may be treated as its owner for all purposes.
12. AMENDMENT, SUPPLEMENT AND WAIVER. The Indenture, the Note Guarantees to the 2028 Notes or the 2028 Notes may be amended or supplemented as provided in the Indenture.
13. DEFAULTS AND REMEDIES. The Events of Default relating to the 2028 Notes are defined in Section 6.01 of the Base Indenture, as supplemented by Section 7.01 of the Third Supplemental Indenture. If any Event of Default (other than an Event of Default arising from certain events of bankruptcy or insolvency) occurs and is continuing, the Trustee or the Holders of at least 25% in principal amount of the then outstanding 2028 Notes and all other notes issued under the Indenture affected thereby (all such series voting as a single class) may declare the principal of and accrued but unpaid interest on all of the 2028 Notes and such other notes of the affected series to be due and payable immediately by notice in writing to the Issuer and the Trustee (if given by the Holders) specifying the respective Event of Default and that it is a notice of acceleration, and the same shall become immediately due and payable. If an Event of Default arising from certain events of bankruptcy or insolvency occurs and is continuing, then all unpaid principal of, and premium, if any, and accrued and unpaid interest on all of the outstanding 2028 Notes shall ipso facto become and be immediately due and payable without any declaration or other act on the part of the Trustee or any Holder. Holders may not enforce the Indenture, the 2028 Notes or the Note Guarantees to the 2028 Notes except as provided in the Indenture. Subject to certain limitations, Holders of a majority in aggregate principal amount of the then outstanding 2028 Notes and all other notes of all series affected thereby may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders notice of any continuing Default (except a Default relating to the payment of principal, premium, if any, or interest) if it determines that withholding notice is in their interest. The Holders of a majority in aggregate principal amount of the then outstanding 2028 Notes and all other notes issued under the Indenture affected thereby (all such series voting as a single class) by written notice to the Trustee may on behalf of the Holders of all of the 2028 Notes waive any existing Default and its consequences under the Indenture with respect to the 2028 Notes except a continuing Default in payment of the principal of, premium, if any, or interest on, any of the 2028 Notes held by a non-consenting Holder. The Issuer is required to deliver to the Trustee annually a statement regarding compliance with the Indenture, and the Issuer is required within 30 Business Days after becoming aware of any Default with respect to the 2028 Notes, to deliver to the Trustee a statement specifying such Default and what action the Issuer proposes to take with respect thereto.
A-8
14. AUTHENTICATION. This 2028 Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose until authenticated by the manual signature of the Trustee or Authenticating Agent.
15. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THE INDENTURE, THE 2028 NOTES OF THIS SERIES AND THE NOTE GUARANTEES TO THE 2028 NOTES.
16. COMMON CODE AND ISIN NUMBERS. The Issuer has caused Common Code and ISIN numbers to be printed on the 2028 Notes of this series and the Trustee or Registrar may use Common Code and ISIN numbers in notices of redemption as a convenience to Holders. No representation is made as to the accuracy of such numbers either as printed on the 2028 Notes or as contained in any notice of redemption and reliance may be placed only on the other identification numbers placed thereon.
The Issuer will furnish to any Holder upon written request and without charge a copy of the Indenture. Requests may be made to the Issuer at the following address:
Delphi Automotive PLC
c/o Delphi Automotive Systems, LLC
5725 Delphi Drive
Troy, Michigan 48098
Facsimile: (248) 813-2491
Attention: Treasurer
A-9
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:
(Insert assignees legal name)
(Insert assignees soc. sec. or tax I.D. no.)
(Print or type assignees name, address and zip code)
and irrevocably appoint
to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.
Date:
Your Signature:
(Sign exactly as your name appears
on the face of this Note)
Signature Guarantee*:
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
A-10
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The initial outstanding principal amount of this Global Note is . The following exchanges of a part of this Global Note for an interest in another Global Note or for a Certificated Note, or exchanges of a part of another Global or Certificated Note for an interest in this Global Note, have been made:
Date of Exchange |
Amount of decrease in Principal Amount of this Global Note |
Amount of increase in Principal Amount of this Global Note |
Principal Amount of this Global Note following such decrease or increase |
Signature of authorized officer of Trustee or Custodian |
* | This schedule should be included only if the Note is issued in global form. |
A-11
Exhibit 5.1
New York Menlo Park Washington DC São Paulo London |
Paris Madrid Tokyo Beijing Hong Kong | |||||||||
![]() |
Davis Polk & Wardwell LLP 450 Lexington Avenue New York, NY 10017 |
212 450 4000 tel 212 701 5800 fax |
September 15, 2016
Re: | OPINION OF DAVIS POLK & WARDWELL LLP Exhibit 5.1 |
Delphi Automotive PLC
Courteney Road
Hoath Way
Gillingham, Kent ME8 0RU
United Kingdom
Ladies and Gentlemen:
Delphi Automotive PLC, a Jersey public limited company (the Company), and the guarantors listed in Schedule I hereto (the Guarantors), have filed with the Securities and Exchange Commission a Registration Statement on Form S-3 (File No. 333-207700) (the Registration Statement) for the purpose of registering under the Securities Act of 1933, as amended (the Securities Act), certain securities, including $500 million aggregate principal amount of the Companys 1.600% Senior Notes due 2028 (the Notes). The Notes are to be issued pursuant to the provisions of a base indenture dated as of March 10, 2015 (the Base Indenture) among the Company, the Guarantors, Wilmington Trust, National Association (the Trustee) and Deutsche Bank Trust Company Americas as registrar, paying agent and authenticating agent (the Agent), as supplemented by the third supplemental indenture dated as of August 15, 2016 among the Company, the Guarantors, the Trustee and the Agent (the Third Supplemental Indenture and, together with the Base Indenture, the Indenture) and sold pursuant to the Underwriting Agreement dated August 31, 2016 (the Underwriting Agreement) among the Company, the Guarantors and the several underwriters named therein (the Underwriters). The Notes will be guaranteed by each of the Guarantors pursuant to the terms of the Indenture (the Guarantees and, together with the Notes, the Securities).
We, as your counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all signatures on all documents that we reviewed are genuine, (iv) all natural persons executing documents had
Delphi Automotive PLC | 2 | September 15, 2016 |
and have the legal capacity to do so, (v) all statements in certificates of public officials and officers of the Company and the Guarantors that we reviewed were and are accurate and (vi) all representations made by the Company and the Guarantors as to matters of fact in the documents that we reviewed were and are accurate.
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, when the Notes have been duly executed and authenticated in accordance with the provisions of the Indenture and delivered to and paid for by the Underwriters pursuant to the Underwriting Agreement, the Notes will constitute valid and binding obligations of the Company, and the Guarantees will constitute the valid and binding obligations of the Guarantors, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights generally, concepts of reasonableness and equitable principles of general applicability, provided that we express no opinion as to (x) the enforceability of any waiver of rights under any usury or stay law, (y) (i) the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law on the conclusions expressed above or (ii) any provision of the Indenture that purports to avoid the effect of fraudulent conveyance, fraudulent transfer or similar provision of applicable law by limiting the amount of any Guarantors obligation or (z) the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Notes to the extent determined to constitute unearned interest.
In connection with the opinion expressed above, we have assumed that the Company and each Guarantor, other than Delphi Corporation, is validly existing as a corporation in good standing under the laws of its respective jurisdiction of incorporation. In addition, we have assumed that the Indenture is a valid, binding and enforceable agreement of each party thereto (other than as expressly covered above in respect of the Company and the Guarantors). We have also assumed that the execution, delivery and performance by each party to each of the Indenture, the Notes and the Guarantees (collectively, the Documents) to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the certificate of incorporation or bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law or regulation or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party, provided that we make no such assumption to the extent that we have specifically opined as to such matters with respect to the Company and each Guarantor.
We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the General Corporation Law of the State of Delaware, except that we express no opinion as to any law, rule or regulation that is applicable to the Company or the Guarantors, the Documents or such transactions solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate. Insofar as the foregoing opinion involves matters governed by the laws of Jersey and the United Kingdom, we have relied, without independent inquiry or investigation, on the opinions of Carey Olsen and Davis Polk & Wardwell London LLP, respectively, each filed as an exhibit to a report on Form 8-K and incorporated by reference into the Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to a report on Form 8-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption Legal Matters in
Delphi Automotive PLC | 3 | September 15, 2016 |
the prospectus supplement which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
Delphi Automotive PLC | 4 | September 15, 2016 |
Schedule I
State or Other Jurisdiction of Incorporation or Organization | ||
Delphi Corporation |
Delaware | |
Delphi Automotive LLP |
England and Wales | |
Delphi Automotive Holdings US Limited |
Jersey |
Exhibit 5.2
47 Esplanade | ||||
Our Ref: |
GEC/KAT/1049519/0015/J10583438v2 |
St Helier Jersey JE1 0BD Channel Islands | ||
Delphi Corporation 5725 Delphi Drive Troy Michigan 48098 USA |
T +44(0) 1534 888900 F +44(0) 1534 887744 E info@careyolsen.com |
15 September 2016
Dear Sirs
Delphi Automotive PLC (DA PLC)
Delphi Automotive Holdings US Limited (DAHUS)
(together the Companies, and each a Company)
1. | Documents opined on |
We have been requested to provide our legal opinion on matters of Jersey law in relation to an indenture dated March 10, 2015 (as heretofore amended, supplemented and otherwise modified, the Base Indenture) among DA PLC, Wilmington Trust, National Association (the Trustee) and Deutsche Bank Trust Company Americas (the Agent), as supplemented by a third supplemental indenture among DA PLC, DAHUS, Delphi Corporation, Delphi Automotive LLP, the Trustee and the Agent dated September 15, 2016 (the Third Supplemental Indenture and together with the Base Indenture, the Indenture) and pursuant to which DA PLC will issue 500,000,000 of its 1.600% senior notes due 2028 (the Notes).
In this Opinion (a) the Base Indenture and the Third Supplemental Indenture are together referred to as the Documents and (b) references to a person shall include any body of persons corporate or unincorporated.
2. | Other documents examined |
We have examined all such other documents as we have considered necessary or advisable for the purpose of giving this Opinion, including the following:-
2.1 | the Registration Statement on Form S-3 dated October 30, 2015 filed with the Securities and Exchange Commission in relation to, among other things, the shelf registration of debt securities to be issued by DA PLC (the Registration Statement); |
Delphi Corporation
15 September 2016
Page 2
2.2 | a prospectus supplement dated August 31, 2016 relating to the issue by DA PLC of the Notes which is supplemental to the prospectus dated October 30, 2015 which was filed with the Registration Statement; |
2.3 | the public records of each Company on file and available for inspection at the office of the Registrar of Companies in Jersey on the date hereof (together the Public Records); |
2.4 | a copy of the Certificate of Incorporation and Memorandum and Articles of Association of each Company; and |
2.5 | certificates of a duly authorised signatory of each Company (the Authorised Signatorys Certificates) relating to certain matters, together with: |
2.5.1 | a copy of written resolutions of the board of directors of DA PLC passed on August 26, 2016 relating to the Documents to which DA PLC is a party and the issue of the Notes and as referred to in the relevant Authorised Signatorys Certificate; and |
2.5.2 | written consent of the sole member of DAHUS dated August 8, 2016 relating to the Documents to which DAHUS is a party, |
and as referred to in the relevant Authorised Signatorys Certificate.
3. | Assumptions |
3.1 | For the purposes of giving this Opinion we have relied on the following assumptions:- |
3.1.1 | that all parties other than the Companies have or had at the relevant time the capacity, power, authority and intention to enter into the documents to which they are a party and that such parties have duly authorised, executed and delivered those documents and that those documents have been dated; |
3.1.2 | the genuineness and authenticity of all signatures and seals on all documents and that the signatures on all documents examined by us are the genuine signatures of persons authorised to execute or certify such documents and the completeness and conformity to original documents of all copies submitted to us; |
3.1.3 | due compliance with all matters of the law of the State of New York, by which law the Documents are expressed to be governed and construed; |
3.1.4 | that there is no provision of the law or regulation of any jurisdiction other than Jersey which would have any adverse implication in relation to the opinions expressed hereunder; |
3.1.5 | that all documents or information required to be filed or registered by or in relation to each Company at the office of the Registrar of Companies in Jersey have been filed and appear on the file there kept in respect of that Company; |
3.1.6 | the accuracy and completeness of each Authorised Signatorys Certificate construed as if the expression to the best of my knowledge and belief or similar did not appear therein, and of all statements as to matters of fact contained in the documents referred to in paragraphs 1 and 2 above, as at the date of this Opinion; and |
3.1.7 | that in resolving that a Company enter into the Document to which it is party and the transaction(s) documented or contemplated thereby the directors or, as the case may be, the shareholders of that Company were acting with a view to the best interests of that Company and were otherwise exercising their powers in accordance with their duties under all applicable laws and that each Company remains solvent (meaning that each Company will be able to discharge its liabilities as they fall due) after entering into the Documents and the transaction(s) documented or contemplated thereby. |
3.2 | We have not independently verified the above assumptions. |
Delphi Corporation
15 September 2016
Page 3
4. | Opinion |
On the basis of and subject to the above and the observations and qualifications below and subject to matters not disclosed to us we are of the following opinion:-
4.1 | Each Company is duly incorporated and validly existing under the laws of Jersey. |
4.2 | Each Company has the corporate power and capacity to enter into the Documents and has taken the corporate and other action necessary under the laws of Jersey to authorise the acceptance and due execution of the Documents and the acceptance and performance of its obligations under the Documents. |
4.3 | DA PLC has the corporate power and capacity to issue the Notes and has taken the corporate and other action necessary under the laws of Jersey to authorise the issue of the Notes and the acceptance and performance of its obligations thereunder. |
4.4 | Each Company has duly executed each of the Documents. |
4.5 | A search of the Public Records today revealed no evidence of any current resolutions for winding up or dissolution of either Company and no evidence of the appointment of any liquidator in respect of either Company or any of its assets. |
4.6 | The office of the Viscount in Jersey has confirmed in response to our enquiry made today that the property of neither Company has been declared to be en désastre. |
5. | Qualifications |
The observations and qualifications referred to above are as follows:-
5.1 | We offer no opinion on whether the execution of, or acceptance or performance of a Companys obligations under, the Documents will or may result in the breach of or otherwise infringe any other agreement, deed or document (other than that Companys Memorandum and Articles of Association) entered into by or binding on that Company. |
5.2 | The search of the Public Records referred to in paragraph 4.5 above is not conclusively capable of revealing whether or not:- |
Delphi Corporation
15 September 2016
Page 4
5.2.1 | a winding up order has been made or a resolution passed for the winding up of a Company; or |
5.2.2 | an order has been made or a resolution passed appointing a liquidator in respect of a Company, |
as notice of these matters might not be filed with the Registrar of Companies in Jersey immediately and, when filed, might not be entered on the public record of the relevant Company immediately.
5.3 | The enquiry at the office of the Viscount referred to in paragraph 4.6 above relates only to the property of a Company being declared to be en désastre. There is no formal procedure for determining whether a Company has otherwise become bankrupt as defined in the Interpretation (Jersey) Law 1954 as amended. |
6. | Governing law, limitations, benefit, disclosure and reliance |
6.1 | This Opinion shall be governed by and construed in accordance with the laws of Jersey and is limited to the matters expressly stated herein. |
6.2 | This Opinion is limited to matters of Jersey law and practice as at the date hereof and we have made no investigation and express no opinion with respect to the law or practice of any other jurisdiction. |
6.3 | We assume no obligation to advise you (or any other person), or undertake any investigations, as to any legal developments or factual matters arising after the date of this Opinion that might affect the opinions expressed herein. |
6.4 | We consent to the filing of a copy of this opinion as an exhibit to a current report on Form 8-K, and incorporation by reference into the Registration Statement. In giving this consent, we do not admit that we are included in the category of persons whose consent is required under Section 7 of the US Securities Act of 1933, as amended (the Securities Act) or the rules and regulations promulgated by the US Securities and Exchange Commission under the Securities Act. |
Yours faithfully |
/s/ Carey Olsen |
Carey Olsen |
PARTNERS:
K Andrews G Coltman K Dixon J Garrood P German W Grace N Journeaux J Kelleher A Kistler S Marks
P Matthams R Milner J Mulholland D OConnor A Ohlsson M Pallot C Philpott S Riley A Saunders R Smith J Willmott
CONSULTANT: N Crocker
Exhibit 5.3
![]() |
New York Menlo Park Washington DC São Paulo London |
Paris Madrid Tokyo Beijing Hong Kong |
Davis Polk & Wardwell London LLP 5 Aldermanbury Square |
020 7418 1300 tel 020 7418 1400 fax |
15 September 2016
Delphi Automotive PLC
Courteney Road
Hoath Way
Gillingham, Kent ME8 0RU
United Kingdom
Dear Sirs
Delphi Automotive LLP: guarantee of 500,000,000 1.600% Senior Notes due 2028 issued by Delphi Automotive PLC
We have acted as advisers as to English law to Delphi Automotive LLP, a limited liability partnership organised under the laws of England and Wales (the English Law Opinion Party), in connection with the issue of 500,000,000 1.600% Senior Notes due 2028 (the Notes) by Delphi Automotive PLC (the Issuer), a public limited company organised under the laws of Jersey, which are to be guaranteed by the English Law Opinion Party pursuant to the Indenture referred to below. The Issuer has filed a registration statement on Form S-3 with the United States Securities and Exchange Commission on 30 October 2015 (the Registration Statement) for the purposes of registering, under the Securities Act of 1933, as amended (the Securities Act), the Notes to be issued, from time to time, pursuant to the Base Indenture referred to below.
The Notes will be issued pursuant to a Senior Indenture, dated as of 10 March 2015, among the Issuer, the guarantors from time to time party thereto, Deutsche Bank Trust Company Americas, as Registrar, Paying Agent and Authenticating Agent, and the Trustee (the Base Indenture) as supplemented by a Third Supplemental Indenture dated as of 15 September 2016 (the Supplemental Indenture) between inter alia the parties to the Base Indenture and the English Law Opinion Party (the Base Indenture and the Supplemental Indenture collectively being referred to in this opinion as the Indenture). For the purposes of this opinion, we have examined the documents listed in Schedule 1 to this opinion.
Capitalised terms used in this opinion shall, unless otherwise defined, have the meaning given to them in Schedule 1 to this opinion.
This opinion is confined to matters of English law as at the date of this opinion, and this opinion and any non-contractual obligations arising out of or in relation to it are governed by and shall be
construed in accordance with English law. Accordingly, we express no opinion with regard to any system of law other than English law as currently applied by the English courts. In particular, we express no opinion on European Union law as it applies to any jurisdiction other than England and Wales. To the extent that the laws of Delaware, New York or Jersey may be relevant, we have made no independent investigation thereof and our opinion is subject to the effect of such laws.
We assume no obligation to notify you of any further changes in law, which may affect the opinions expressed herein, or otherwise to update this opinion in any respect.
Opinions
On the basis of our examination of the documents listed in Schedule 1 to this opinion and the other matters referred to above, and subject to the assumptions set out in Schedule 2 to this opinion, the qualifications set out in Schedule 3 to this opinion and any matters not disclosed to us, we are of the opinion that:
1. | Corporate existence. The English Law Opinion Party is a limited liability partnership that has been duly incorporated in Great Britain and registered in England and Wales. |
2. | Corporate power. The English Law Opinion Party has the requisite corporate capacity to enter into the Indenture and to perform its obligations under the Indenture. |
3. | Corporate action. All corporate action required to be taken by the English Law Opinion Party to authorise the execution by the English Law Opinion Party of the Supplemental Indenture has been duly taken and the Supplemental Indenture has been duly executed by or on behalf of the English Law Opinion Party. |
This opinion and any non-contractual obligations arising out of or in relation to it are governed by and shall be construed in accordance with English law.
This opinion is addressed to you for your own benefit for the purposes of the Registration Statement filed under the Securities Act. It may not be disclosed or furnished to, or used or relied upon by, any other person or used or relied upon by you for any other purpose without, in any such case, our prior written consent. We hereby give such consent to the filing of this opinion as an exhibit to a Current Report on Form 8-K filed by the Issuer on the date hereof and its incorporation by reference into the Registration Statement. In giving this consent, we do not thereby admit that we come within in the category of persons whose consent is required under Section 7 of the Securities Act.
Yours faithfully |
/s/ Davis Polk & Wardwell London LLP |
Davis Polk & Wardwell London LLP is a limited liability partnership formed under the laws of the State of New York, USA, and is authorised and regulated by the Solicitors Regulation Authority with registration number 566321.
Davis Polk includes Davis Polk & Wardwell LLP and its associated entities.
Delphi Automotive plc | 15 September 2016 |
SCHEDULE 1
DOCUMENTS EXAMINED
For the purposes of this opinion, we have examined the following documents:
Transaction Documents
1. | a copy of the executed New York law governed Base Indenture; |
2. | a copy of the executed New York law governed Supplemental Indenture; |
Corporate Documents
3. | a certificate from the secretary of the English Law Opinion Party dated 15 September 2016 (the Certificate); having attached to it the documents set out in paragraphs 4 to 9 below; |
4. | a copy of the Certificate of Incorporation in respect of the English Law Opinion Party, certified to be a true and correct copy; |
5. | a copy of the certificate of incorporation on change of name in respect of the English Law Opinion Party, certified to be a true and correct copy; |
6. | a copy of the Delaware law governed Fifth Amended and Restated Partnership Agreement, certified to be a true and correct copy as at the date and time of authorisation and execution of the Base Indenture, the Supplemental Indenture and on the date hereof (the Partnership Agreement); |
7. | a copy of the written resolutions passed by the members of the English Law Opinion Party dated 25 August 2016, certified to be a true and correct copy; |
8. | a list of persons duly authorised to sign any document or instrument relating to the issue and offer of the Notes or certificates delivered thereunder and specimen signatures thereof, each certified to be a true and correct copy as at the date and time of execution of the Supplemental Indenture and on the date hereof; and |
9. | a copy of a Certificate of Good Standing in respect of the English Law Opinion Party dated 14 September 2016 issued by the Registrar of Companies at Companies House (the Certificate of Good Standing); |
Except as stated above we have not examined any contracts, instruments or other documents entered into by any party to the Indenture or any corporate records of any party to the Indenture and have not made any other enquiries other than the Company Search and Central Index Search concerning the Indenture or the parties thereto.
Delphi Automotive plc | 15 September 2016 |
SCHEDULE 2
ASSUMPTIONS
For the purposes of this opinion, we have assumed:
1. | all documents submitted to us, whether as originals or copies, are authentic and complete; |
2. | all documents submitted to us as copies, whether in physical or electronic form, conform to authentic, complete originals and, where a document has been examined by us in draft or specimen form, it will be or has been executed in the form of that draft or specimen; |
3. | all signatures, stamps and seals on all documents that we reviewed are genuine; |
4. | all signatures purporting to be on behalf of the English Law Opinion Party are those of persons authorised by resolutions of the English Law Opinion Party to execute the relevant document on behalf of the English Law Opinion Party; |
5. | the English Law Opinion Party has validly authorised the attachment of its signature pages to the final text of the Opinion Documents; |
6. | in relation to the English Law Opinion Party: |
(a) | each of the certificate of incorporation in the form referred to in paragraph 4 of Schedule 1, the certificate of incorporation on change of name in the form referred to in paragraph 5 of Schedule 1 and the Partnership Agreement in the form referred to in paragraph 6 of Schedule 1 was in force at the date and time of authorisation and execution of the Supplemental Indenture, and is in force on the date hereof; |
(b) | that the written resolutions referred to in paragraph 7 of Schedule 1 were duly passed as written resolutions, that both members of the English Law Opinion Party have signed one or more copies of the written resolutions or otherwise indicated agreement in writing to such resolutions, that all relevant provisions of the Partnership Agreement were duly observed, that the members of the English Law Opinion Party had the capacity, power and authority to enter into such resolutions and that such resolutions have not been amended, revoked or rescinded and are in full force and effect; |
7. | that in entering into the Indenture, the English Law Opinion Party did so in good faith and for the purpose of carrying on its business and at the time that the Indenture was entered into: |
(a) | there were reasonable grounds for the members of the English Law Opinion Party to believe that the transactions to which the Indenture relates, and the execution and delivery by the English Law Opinion Party of the Indenture and the exercise of its rights and the performance of its obligations thereunder, would materially benefit the English Law Opinion Party and be likely to promote its success for the benefit of its members as a whole; and |
(b) | the English Law Opinion Party was not unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986 (the Insolvency Act) (for which purpose account is to be taken of its contingent and prospective liabilities) and has not and will not become so unable to pay its debts in consequence of entering into or performing its obligations under the Indenture; |
Delphi Automotive plc | 5 | 15 September 2016 |
8. | the members of the English Law Opinion Party acted in good faith and in accordance with their duties under all applicable laws and the Partnership Agreement of that English Law Opinion Party in authorising execution of the Supplemental Indenture; |
9. | the execution and delivery of the Supplemental Indenture by the English Law Opinion Party and the exercise of its rights and performance of its obligations under the Indenture will sufficiently benefit, and is in the interests of, the English Law Opinion Party; |
10. | each of the statements contained in the Certificate is true and correct as at the date hereof; |
11. | the information revealed by the entries of an on-line search obtained by us from the Companies House Direct Service with respect to the English Law Opinion Party on 14 September 2016 (the Company Search) (i) was accurate in all respects and has not since the time of such search been altered, and (ii) was complete and included all relevant information which had been properly submitted to the Registrar of Companies; |
12. | the information revealed by the results of a telephone search with the Companies Court in London of the Central Index of Winding Up Petitions on 14 September 2016 with respect to the English Law Opinion Party (the Central Index Search); was accurate in all respects and has not since the time of such enquiry been altered; |
13. | the information contained in the Certificate of Good Standing was accurate in all respects and has not since the date thereof been altered, and was complete and included all relevant information; |
14. | the parties to the Partnership Agreement had the capacity and power to enter into the Partnership Agreement, the Partnership Agreement was duly authorised by and duly executed by or on behalf of each of the parties to it in the form referred to in Schedule 1, the Partnership Agreement creates legal, valid, binding and enforceable obligations under the laws of Delaware by which it is expressed to be governed and the words and phrases used in the Partnership Agreement have the same meaning and effect as they would have if governed by English law; |
15. | the English Law Opinion Party has not passed a voluntary winding-up resolution, that no petition has been presented to or order made by a court for the winding up or dissolution of the English Law Opinion Party, that no application has been made to a court for an administration order in respect of the English Law Opinion Party and no administration order has been made by any court in relation to the English Law Opinion Party, that no appointment of an administrator of the English Law Opinion Party has been made out of court and no notice of intention to appoint an administrator has been given or filed with any court in respect of the English Law Opinion Party, that no receiver, trustee, administrator, provisional liquidator, administrative receiver or similar officer has been appointed in relation to the English Law Opinion Party or any of its assets or revenues; |
16. | no procedure or step analogous to any procedure or step described in paragraph 19 of this Schedule 2 has been taken in New York, Delaware or any other applicable jurisdiction in relation to the English Law Opinion Party; |
17. | no foreign law which may apply with respect to the Indenture or the transactions and matters contemplated thereby would be such as to affect any of the conclusions stated herein; |
Delphi Automotive plc | 6 | 15 September 2016 |
18. | that none of the parties is or will be seeking to achieve any purpose not apparent from the Indenture which night render the Indenture illegal, void or unenforceable and, in particular (but without limitation), that none of the Indenture (whether alone or in conjunction with any other document) or any related transaction or transactions contemplated by the Indenture constitute financial assistance for the purpose of Section 678 or 679 of the Companies Act 2006; |
19. | all consents, licences, approvals, authorisations, registrations, notices or filings which are necessary under any applicable laws in order to permit the execution, delivery or performance of the Indenture, or otherwise in connection therewith, have been made or obtained; |
20. | each party has executed and delivered the Base Indenture and the Supplemental Indenture and both the Base Indenture and the Supplemental Indenture are not subject to any escrow or other similar arrangement. |
Delphi Automotive plc | 7 | 15 September 2016 |
SCHEDULE 3
QUALIFICATIONS
Our opinion is subject to the following qualifications:
1. | The Company Search is not capable of revealing conclusively whether or not, inter alia, (i) a winding-up order has been made or a resolution passed for the winding up of a limited liability partnership; or (ii) an administration order has been made; or (iii) a receiver, administrative receiver, administrator or liquidator has been appointed, since notice of these matters may not be filed with the Registrar of Companies immediately and, when filed, may not be entered on the electronic records of the relevant limited liability partnership immediately. |
2. | The Central Index Search relates only to the presentation of (i) a petition for the making of a winding-up order or the making of a winding-up order by the Court; (ii) an application to the High Court of Justice in London for the making of an administration order and the making by such court of an administration order; and (iii) a notice of intention to appoint an administrator or a notice of appointment of an administrator filed at the High Court of Justice in London. It is not capable of revealing conclusively whether or not such a winding-up petition, application for an administration order, notice of intention or notice of appointment has been presented or winding-up or administration order granted. |
3. | This opinion is subject to all applicable laws relating to bankruptcy, insolvency, liquidation, administration, voluntary arrangement, scheme of arrangement, moratorium, reorganisation, rescheduling, fraudulent transfer, preference, transactions at undervalue or other laws of general application relating to or affecting the rights of creditors. |
4. | Legislation, treasury rules and other laws and regulations in England and Wales restrict or prohibit payments, transactions and dealings with assets and individuals or entities having a proscribed connection with certain countries or subject to international sanctions or associated with terrorism. |