Exhibit 1.1
Execution Version
UNDERWRITING AGREEMENT
October 31, 2024
BNP Paribas Securities Corp.
as Representative of the Underwriters,
c/o BNP Paribas Securities Corp.
787 Seventh Avenue
New York, New York 10019
Ladies and Gentlemen:
Introductory. OneMain Finance Corporation, an Indiana
corporation (the “Company”), proposes to issue and sell to BNP Paribas Securities Corp. (“BNPP”) and the other several Underwriters named in Schedule A (collectively,
the “Underwriters”), acting severally and not jointly, the respective amounts set forth in Schedule A of $900,000,000 aggregate principal amount of the Company’s 6.625% Senior Notes due 2029 (the “Securities”). The Securities will be guaranteed (the “Guarantee”) by OneMain Holdings, Inc., a Delaware corporation (the “Guarantor”
or “Parent”), the direct parent company of the Company. BNPP has agreed to act as the representative of the several Underwriters (the “Representative”) in connection
with the offering and sale of the Securities. As used herein, the term “Securities” shall include the Guarantee unless the context requires otherwise.
The Company intends to use all of the net proceeds from the offering for general corporate purposes, which may include debt repurchases or repayments.
The Securities will be issued pursuant to an indenture, dated as of December 3, 2014 (the “Base Indenture”), among the Company, the
Guarantor and Wilmington Trust, N.A., as trustee. Certain terms of the Securities will be established pursuant to a supplemental indenture among the Company, the Guarantor and HSBC Bank USA, N.A., as series trustee (the “Trustee”), to be dated as of November 4, 2024 (the “Supplemental Indenture”), to the Base Indenture (together with the Base Indenture, the “Indenture”).
This Agreement, the Securities and the Indenture are referred to herein as the “Transaction Documents.”
The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1. Representations and Warranties. The Company and the Guarantor hereby jointly and severally represent, warrant and covenant to each Underwriter that, as of the
date hereof and as of the Closing Date (as defined below) (references in this Section 1 to the “Prospectus” are to (x) the Disclosure Package in the case of representations and warranties made as of the date
hereof and (y) the Prospectus in the case of representations and warranties made as of the Closing Date):
(a) Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-3 (File No. 333-274956-01), which contains a base prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of the Securities. Such
registration statement, as amended, including the financial statements, exhibits and schedules thereto, at each time of effectiveness under the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively,
the “Securities Act”), including any required information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430A(b) (the “Rule 430A Information”),
Rule 430B or Rule 430C under the Securities Act or the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “Exchange Act”), is called the “Registration Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement,”
and from and after the date and time of filing of the Rule 462(b) Registration Statement the term “Registration Statement” shall include the Rule 462(b) Registration Statement. Any preliminary prospectus
supplement relating to the Securities that is filed with the Commission pursuant to Rule 424(b), together with the Base Prospectus, is hereafter called a “Preliminary Prospectus.” The term “Prospectus” shall mean the final prospectus supplement relating to the Securities that is first filed pursuant to Rule 424(b) after the date and time that this Agreement is executed and delivered by the parties
hereto, including the Base Prospectus. Any reference herein 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; any reference to any amendment or supplement to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Exchange Act.
(b) Compliance with Registration Requirements. The Company meets the requirements for use of Form S-3 under the Securities Act. The Registration Statement has become
effective upon filing with the Commission under the Securities Act. No stop order suspending the effectiveness of the Registration Statement is in effect, the Commission has not issued any order or notice preventing or suspending the use of the
Registration Statement, any Preliminary Prospectus or the Prospectus and no proceedings for such purpose or pursuant to Section 8A of the Securities Act have been instituted or are pending or, to the knowledge of the Company and the Guarantors, are
threatened by the Commission.
Each of the Preliminary Prospectus and the Prospectus when filed complied or will comply with, as applicable, in all material respects with the Securities Act. Each of the Registration Statement and any post-effective
amendment thereto, at each time of effectiveness, 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 not misleading. The Prospectus, as amended or supplemented, as of its date, at the time of any filing pursuant to Rule 424(b) and, at the Closing Date, did not and 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. The representations and warranties set forth in the two immediately
preceding sentences do not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto, or the Preliminary Prospectus or the Prospectus, or any amendments or supplements thereto, made in reliance upon
and in conformity with information relating to any Underwriter furnished to the Company in writing by the Representative expressly for use therein, it being understood and agreed that the only such information furnished by the Representative consists
of the information described as such in Section 8(b) hereof.
The documents incorporated or deemed to be incorporated by reference in the Prospectus at the time they were or hereafter are filed with the Commission (collectively, the “Incorporated
Documents”) complied and will comply in all material respects with the requirements of the Exchange Act. Each such Incorporated Document, when taken together with the Registration Statement as of its date, when taken together with the
Disclosure Package, did not as of the Applicable Time and, when taken together with the Prospectus, will not at the Closing Date 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.
(c) Well-Known Seasoned Issuer. (i) At the time of filing the Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of
complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any
person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Securities in reliance on the exemption of Rule 163 of the Securities Act, and (iv) at the Applicable Time
(with such date and time being used as the determination date for purposes of this clause (iv)), the Parent was and is a “well-known seasoned issuer” as defined in Rule 405 of the Securities Act. The Registration Statement is an “automatic shelf
registration statement,” as defined in Rule 405 of the Securities Act that has been filed with the Commission not earlier than three years prior to the Closing Date; the Parent has not received from the Commission any notice pursuant to Rule
401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form; and the Parent has not otherwise ceased to be eligible to use the automatic shelf registration form.
(d) Disclosure Package. The term “Disclosure Package” shall mean (i) the Preliminary Prospectus, if any, as amended or
supplemented and (ii) each “free writing prospectus” as defined in Rule 405 of the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in Schedule C hereto. As of the first time when
sales of the Securities are made (the “Applicable Time”), the Disclosure Package did 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. The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information
furnished to the Company by any Underwriter through the Representative specifically for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the information described as
such in Section 8(b) hereof.
(e) Company Not Ineligible Issuer. (i) At the earliest time after the filing of the Registration Statement relating to the Securities that the Company or another
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the Securities Act) and (ii) as of the Applicable Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not
and is not an “ineligible issuer” (as defined in Rule 405 of the Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an
“ineligible issuer.”
(f) Issuer Free Writing Prospectuses. No Issuer Free Writing Prospectus conflicts or will conflict with the information contained in the Registration Statement or the
Prospectus, and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. Pursuant to Rule 433(d)(8)(i), no filing of any “road show” (as defined in Rule 433(h)) is required in connection with the
offering of the Securities.
(g) Underwriting Agreement. This Agreement has been duly executed, authorized and delivered by the Company and the Guarantor.
(h) Authorization of the Securities. The Securities to be purchased by the Underwriters from the Company will on the Closing Date be in the form contemplated by the
Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles (whether considered in a proceeding in equity or at law) (the “Enforceability Limitations”) and will be entitled to the benefits of the Indenture.
(i) Authorization of the Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “Trust
Indenture Act”), and, at the Closing Date, the Supplemental Indenture will have been duly qualified under the Trust Indenture Act. The Base Indenture has been duly authorized, executed and delivered by the Company and the Guarantor and
constitutes a valid and binding agreement of the Company and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by the Enforceability Limitations. The
Supplemental Indenture has been duly authorized by the Company and the Guarantor and, at the Closing Date, will have been duly executed and delivered by the Company and the Guarantor and will constitute a valid and binding agreement of the Company
and the Guarantor, enforceable against the Company and the Guarantor in accordance with its terms, except as the enforcement thereof may be limited by the Enforceability Limitations.
(j) Description of the Transaction Documents. The Transaction Documents will each conform in all material respects to the respective statements relating thereto
contained in the Prospectus.
(k) No Material Adverse Change. Except as otherwise disclosed in the Prospectus (exclusive of any amendment or supplement thereto), subsequent to the respective dates as
of which information is given in the Prospectus (exclusive of any amendment or supplement thereto); there has not been any development that could reasonably be expected to result in any material increase in the consolidated long-term debt of the
Company or the Guarantor (other than the issuance of debt in securitizations that are non-recourse to the Company and its subsidiaries or the Guarantor (other than special purpose securitization vehicle issuing such debt)) or any material adverse
change in or affecting the business, consolidated financial position, shareholders’ equity or results of operations of the Company and its consolidated subsidiaries, considered as one entity (any such change is called a “Material Adverse Change”).
(l) Independent Accountant. PricewaterhouseCoopers LLP, which expressed its opinion with respect to the financial statements (which term as used in this Agreement
includes the related schedules and notes) of the Company and Parent filed with the Commission and incorporated by reference in the Prospectus, is an independent registered public accounting firm within the meaning of the Securities Act, the Exchange
Act and the rules of the Public Company Accounting Oversight Board.
(m) Preparation of the Financial Statements. The financial statements, together with the related schedules and notes, included in or incorporated by reference into the
Registration Statement and included or incorporated by reference in the Disclosure Package and the Prospectus present fairly in all material respects the consolidated financial position of the entities to which they relate as of and at the dates
indicated and the results of their operations and cash flows for the periods specified. Such financial statements in all material respects have been prepared in conformity with generally accepted accounting principles as applied in the United States
(“GAAP”) applied on a consistent basis throughout the periods involved, except as may be expressly stated in the related notes thereto or in the Preliminary Prospectus and the Prospectus. The statistical and
market-related data and forward-looking statements included in or incorporated by reference into the Prospectus are based on or derived from sources that the Company and its consolidated subsidiaries believe to be reliable and accurate in all
material respects and represent their good faith estimates that are made on the basis of data derived from such sources. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the
Disclosure Package and the Prospectus fairly present the information called for in all material respects and have been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(n) Incorporation and Good Standing of the Company, its Subsidiaries and the Guarantor. Each of the Company and, except as would not reasonably be expected to result in
a Material Adverse Change, its subsidiaries and the Guarantor has been duly incorporated or formed, as applicable, and is validly existing as a corporation, limited partnership or limited liability company, as applicable, in good standing under the
laws of the jurisdiction of its incorporation or formation, as applicable, and has corporate, partnership or limited liability company, as applicable, power and authority to own, lease and operate its properties and to conduct its business as
described in the Prospectus and, in the case of the Company and the Guarantor, as applicable, to enter into and perform its obligations under each of the Transaction Documents. Each of the Company, its subsidiaries and the Guarantor is duly
qualified as a foreign corporation, limited partnership or limited liability company, as applicable, to transact business and is in good standing or equivalent status in each jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except for such jurisdictions where the failure to so qualify or to be in good standing would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change. All of the issued and outstanding capital stock or other ownership interest of each subsidiary of the Guarantor has been duly authorized and validly issued, is fully paid and nonassessable and is owned by the Guarantor, directly or
through its subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or claim, except as disclosed in the Prospectus. The Company does not own or control, directly or indirectly, any corporation, association or
other entity other than the subsidiaries listed in Exhibit A hereto.
(o) Capitalization. At September 30, 2024, on a consolidated basis, after giving effect to the issuance and sale of the Securities pursuant hereto and the other
adjustments described in the Prospectus, (i) the Company would have an authorized and outstanding capitalization as set forth in the Prospectus under the caption “OMFC Capitalization” and (ii) the Guarantor would have an authorized and outstanding
capitalization as set forth in the Prospectus under the caption “OMH Capitalization” (in each case, other than for subsequent issuances of capital stock, if any, pursuant to employee benefit plans described in the Prospectus or upon exercise of
outstanding options described in the Prospectus).
(p) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required. Neither the Company nor any of its subsidiaries nor the Guarantor is (i)
in violation of its charter, bylaws or other constitutive document or (ii) in default (or, with the giving of notice or lapse of time, would be in default) (“Default”) under any material indenture, mortgage,
deed of trust, loan agreement or other material agreement or instrument to which the Company, any of its subsidiaries or the Guarantor is a party or by which it or any of them is bound or to which any of the property or assets of the Company, any of
its subsidiaries or the Guarantor is subject (each, an “Existing Instrument”), except, (A) in the case of clause (i) above with respect subsidiaries of the Company, for such violations as would not,
individually or in the aggregate, reasonably be expected to result in a Material Adverse Change and (B) in the case of clause (ii) above, for such Defaults as would not, individually or in the aggregate, reasonably be expected to result in a Material
Adverse Change. The issue and sale of the Securities and the execution, delivery and performance by the Company and the Guarantor with all of the provisions of the Transaction Documents (i) will not result in any violation of any law, statute or any
order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company, its subsidiaries or the Guarantor or any of their respective properties or affect the validity of the Securities, except for such violations
that would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Change, (ii) will not result in any violation of the provisions of the charter, bylaws or other constitutive document of the Company, any of its
subsidiaries or the Guarantor and (iii) will not conflict with or result in a breach of any of the terms of 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 Company, any of its subsidiaries or the Guarantor pursuant to, or require the consent of any other party to, any Existing Instrument, except for conflicts, breaches, Defaults, liens, charges or encumbrances as would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse Change. No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency is required by the Company or the Guarantor for
the issue and sale of the Securities or the consummation by the Company or the Guarantor of the other transactions contemplated by the Transaction Documents, except for such consents, approvals, authorizations, orders, registrations or qualifications
which, if not obtained or made, would affect the validity of the Securities, and such consents, approvals, authorizations, orders, registrations or qualifications as have been, or prior to the Closing Date will be, obtained under the Securities Act
or the Trust Indenture Act and such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or “Blue Sky” or insurance laws in connection with the purchase and distribution of the
Securities by the Underwriters.
(q) No Material Actions or Proceedings. There are no legal or governmental actions, suits or proceedings pending or, to the knowledge of the Company, threatened against
the Company or any of its subsidiaries or the Guarantor, which has resulted in, or may be reasonably expected to result in, a Material Adverse Change, except as disclosed in the Prospectus.
(r) All Necessary Permits, etc. Except as otherwise disclosed in the Prospectus, the Company and each subsidiary and the Guarantor possess such valid and current
certificates, authorizations, licenses or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their respective businesses, and neither the Company nor any of its subsidiaries nor the
Guarantor has received any notice of proceedings relating to the revocation, suspension, termination, impairment or modification of, or non-compliance with, any such certificate, authorization, license or permit which, singly or in the aggregate, if
the subject of an unfavorable decision, ruling or finding, would result in a Material Adverse Change.
(s) Title to Properties. Except as otherwise disclosed in the Prospectus or as would not reasonably be expected to result in a Material Adverse Change, each of the
Company, its subsidiaries and the Guarantor has good and marketable title to all the properties and assets reflected as owned in the financial statements referred to in Section 1(m) hereof, in each case free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except as disclosed in the Prospectus and except such as do not materially and adversely affect the value of such property and do not materially interfere with the use made or
proposed to be made of such property by the Company, the Guarantor or such subsidiary.
(t) Tax Law Compliance. Except as would not reasonably be expected to result in a Material Adverse Change, the Company and its subsidiaries and the Guarantor (i) have
filed all necessary federal, state and foreign income and franchise tax returns or have properly requested extensions thereof and (ii) have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment,
fine or penalty levied against any of them except as may be being contested in good faith and by appropriate proceedings and with respect to which adequate reserves have been established in accordance with GAAP.
(u) Company and Guarantor Not an “Investment Company.” The Company and the Guarantor are not, and after receipt of payment for the Securities will not be, an “investment
company” within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company Act,” which term, as used herein, includes the rules and regulations of the Commission promulgated
thereunder).
(v) Insurance. Each of the Company, its subsidiaries and the Guarantor are insured by recognized, financially sound institutions with policies in such amounts and with
such deductibles and covering such risks as are generally deemed adequate and customary for their businesses taken as a whole, including, without limitation, policies covering real and personal property owned or leased by the Company and its
subsidiaries and the Guarantor against theft, damage, destruction and acts of vandalism.
(w) No Price Stabilization or Manipulation. The Company and the Guarantor have not taken nor will take, directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation of the price of any security of the Company or the Guarantor to facilitate the sale or resale of the Securities.
(x) Solvency. The Company, immediately after the Closing Date will be Solvent. As used herein, the term “Solvent” and “Solvency” mean, that as of September 30, 2024, after giving pro forma effect to the offering of the Securities and the use of proceeds therefrom and any material liabilities incurred since September 30, 2024, the
Company and its subsidiaries taken as a whole on a consolidated basis have total shareholder’s equity that is greater than zero; provided that Solvency shall be determined excluding any intercompany debt owing among the Company’s subsidiaries.
(y) Company’s and Guarantor’s Accounting Systems. Except as disclosed in the Prospectus, the Company, its subsidiaries and the Guarantor maintain systems of accounting
controls that are sufficient to provide reasonable assurances that: (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect to any differences.
(z) Disclosure Controls and Procedures. The Company and the Guarantor have established and maintain disclosure controls and procedures (as such term is defined in Rules
13a-15 and 15d-15 under the Exchange Act) and such disclosure controls and procedures are (i) designed to ensure that material information relating to the Guarantor, the Company and its subsidiaries is made known to the chief executive officer and
chief financial officer of the Company or Guarantor, as applicable, by others within the Company or any of its subsidiaries or Guarantor, as applicable, and (ii) reasonably effective to perform the functions for which they were established subject to
the limitations of any such control system; the Guarantor and Company’s auditors and the Audit Committee of the Board of Directors of the Company and the Guarantor, as applicable, have been advised of: (i) any significant deficiencies or material
weaknesses in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize, and report financial data and (ii) any fraud, whether or not material, that involves management or other
employees who have a role in the Company’s or the Guarantor’s internal controls; and since the date of the most recent evaluation of such disclosure controls and procedures, there have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including any corrective actions with regard to significant deficiencies and material weaknesses.
(aa) Regulations T, U, X. Neither the Company nor any of its subsidiaries nor the Guarantor nor any agent thereof acting on their behalf has taken, and none of them will
take, any action that might cause this Agreement or the issuance or sale of the Securities to violate Regulation T, Regulation U or Regulation X of the Board of Governors of the Federal Reserve System.
(bb) Compliance with and Liability under Environmental Laws. Except as would not, individually or in the aggregate, reasonably be expected to result in a Material Adverse
Change: (i) each of the Company, its subsidiaries and the Guarantor and their respective operations and facilities are in compliance with, and not subject to any known liabilities under, applicable Environmental Laws, which compliance includes,
without limitation, having obtained and being in compliance with any permits, licenses or other governmental authorizations or approvals, and having made all filings and provided all financial assurances and notices, required for the ownership and
operation of the business, properties and facilities of the Company or its subsidiaries or the Guarantor under applicable Environmental Laws, and compliance with the terms and conditions thereof; (ii) neither the Company nor any of its subsidiaries
nor the Guarantor has received any written communication, whether from a governmental authority, citizens group, employee or otherwise, that alleges that the Company or any of its subsidiaries or the Guarantor is in violation of any Environmental
Law; (iii) there is no claim, action or cause of action filed with a court or governmental authority, no investigation with respect to which the Company or the Guarantor has received written notice, and no written notice by any person or entity
alleging actual or potential liability on the part of the Company or any of its subsidiaries or the Guarantor based on or pursuant to any Environmental Law pending or, to the best of the Company’s knowledge, threatened against the Company or any of
its subsidiaries or the Guarantor or any person or entity whose liability under or pursuant to any Environmental Law the Company or any of its subsidiaries or the Guarantor has retained or assumed either contractually or by operation of law; (iv)
neither the Company nor any of its subsidiaries nor the Guarantor is conducting or paying for, in whole or in part, any investigation, response or other corrective action pursuant to any Environmental Law at any site or facility, nor is any of them
subject or a party to any order, judgment, decree, contract or agreement which imposes any obligation or liability under any Environmental Law; (v) no lien, charge, encumbrance or restriction has been recorded pursuant to any Environmental Law with
respect to any assets, facility or property owned, operated or leased by the Company or any of its subsidiaries or the Guarantor; and (vi) there are no past or present actions, activities, circumstances, conditions or occurrences, including, without
limitation, the Release or threatened Release of any Material of Environmental Concern, that could reasonably be expected to result in a violation of or liability under any Environmental Law on the part of the Company or any of its subsidiaries or
the Guarantor, including without limitation, any such liability which the Company or any of its subsidiaries or the Guarantor has retained or assumed either contractually or by operation of law.
For purposes of this Agreement, “Environment” means ambient air, indoor air, surface water, groundwater, drinking water, soil, surface and subsurface strata, and natural resources
such as wetlands, flora and fauna. “Environmental Laws” means the common law and all federal, state, local and foreign laws or regulations, ordinances, codes, orders, decrees, judgments and injunctions issued,
promulgated or entered thereunder, relating to pollution or protection of the Environment or human health, including without limitation, those relating to (i) the Release or threatened Release of Materials of Environmental Concern; and (ii) the
manufacture, processing, distribution, use, generation, treatment, storage, transport, handling or recycling of Materials of Environmental Concern. “Materials of Environmental Concern” means any substance,
material, pollutant, contaminant, chemical, waste, compound, or constituent, in any form, including without limitation, petroleum and petroleum products, subject to regulation or which can give rise to liability under any Environmental Law. “Release” means any release, spill, emission, discharge, deposit, disposal, leaking, pumping, pouring, dumping, emptying, injection or leaching into the Environment, or into, from or through any building, structure
or facility.
(cc) ERISA Compliance. The Company, its subsidiaries and the Guarantor and each “employee benefit plan” (as defined under Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA,” which term, as used herein, includes the regulations and published interpretations thereunder)), established or maintained by
the Company, its subsidiaries, the Guarantor or any ERISA Affiliate (as defined below) or for which the Company, its subsidiaries, the Guarantor or their ERISA Affiliates would have any liability (each, a “Plan”),
is in compliance in all material respects with ERISA and the Code (as defined below). To the knowledge of the Company, each “multiemployer plan” (as defined in Section 4001 of ERISA) to which the Company, its subsidiaries, the Guarantor or any ERISA
Affiliate contributes (a “Multiemployer Plan”) is in compliance in all material respects with ERISA. “ERISA Affiliate” means any member of any group of organizations
described in Section 414 of the Internal Revenue Code of 1986, as amended (the “Code,” which term, as used herein, includes the regulations and published interpretations thereunder) of which the Company or any
of its subsidiaries or the Guarantor is a member. Except as would not reasonably be expected to result in a Material Adverse Change, (i) no Plan is, or is reasonably expected to be, in “at risk status” (within the meaning of Section 303(i) of ERISA)
or “endangered status” or “critical status” (within the meaning of Section 305 of ERISA). The fair market value of the assets of each Plan exceeds the present value of all benefits accrued under such Plan and (ii) no “reportable event” (as defined
under Section 4043(c) of ERISA) has occurred or is reasonably expected to occur with respect to any Plan. None of the Company, its subsidiaries, the Guarantor or any ERISA Affiliate has incurred, or reasonably expects to incur, any material
liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Section 412, 4971, 4975 or 4980B of the Code. Each Plan that is intended to be qualified under Section 401 of the Code is
so qualified and nothing has occurred, whether by action or by failure to act, which would reasonably be expected to cause the loss of such qualification.
(dd) Labor. No labor disturbance by, or dispute with, employees of the Company, any of its subsidiaries or the Guarantor exists or, to the best knowledge of the Company
and each of the Guarantors, is contemplated or threatened, except as would not result in a Material Adverse Change.
(ee) Compliance with Laws. Each of the Company and the Guarantor are in compliance in all material respects with the requirements of all laws and all orders, writs,
injunctions, regulations and decrees applicable to it or to its properties, except in such instances in which (i) such requirement of law or order, writ, injunction, regulation or decree is being contested in good faith by appropriate proceedings
diligently conducted or (ii) the failure to comply therewith, either individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Change.
(ff) Related Party Transactions. No relationship, direct or indirect, exists between or among any of the Company or the Guarantor or any affiliate of the Company or the
Guarantor, on the one hand, and any director, officer, member, stockholder, customer or supplier of the Company or the Guarantor or any affiliate of the Company or the Guarantor, on the other hand, which is required to be disclosed by Item 404 of
Regulation S-K under the Securities Act is not so disclosed or incorporated by reference in the Prospectus. There are no outstanding loans, advances (except advances for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company or the Guarantor or any affiliate of the Company or the Guarantor to or for the benefit of any of the officers or directors of the Company or the Guarantor or any affiliate of the Company or the Guarantor or any of their
respective family members.
(gg) No Unlawful Contributions or Other Payments. Neither the Company nor any of its subsidiaries nor the Guarantor nor, to the knowledge of the Company, any director,
officer, agent, employee or controlled affiliate of the Company or any of its subsidiaries or the Guarantor is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Anti-Corruption Laws,
including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise
to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the
Anti-Corruption Laws and the Company, its subsidiaries, the Guarantor and, to the knowledge of the Company, its controlled affiliates have conducted their businesses in compliance with the Anti-Corruption Laws and have instituted and maintain
policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
“Anti-Corruption Laws” means all applicable laws, rules, and regulations of any jurisdiction applicable to the Company, its subsidiaries, its controlled affiliates, or the
Guarantor from time to time, concerning or relating to bribery or corruption, including but not limited to the FCPA.
“FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder.
(hh) No Conflict with Money Laundering Laws. The operations of the Company and its subsidiaries and the Guarantor are and have been conducted at all times in compliance
in all material respects with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable 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 Company or any of its subsidiaries or the Guarantor with respect to the Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.
(ii) No Conflict with Sanctions Laws. Neither the Company nor any of its subsidiaries nor the Guarantor nor, to the knowledge of the Company, any director, officer,
agent, employee or controlled affiliate of the Company or any of its subsidiaries or the Guarantor is currently subject to any sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of
Commerce, the U.S. Department of State, the United Nations Security Council, the European Union or any European Union member state, or HM Treasury (collectively, “Sanctions”), nor is the Company or any of its
subsidiaries or the Guarantor located, organized or resident in a country or territory that is the subject of Sanctions (each a “Sanctioned Country” (as of the date of this agreement, Cuba, Iran, North Korea,
Syria, and the Crimea, so-called Donetsk People’s Republic, Kherson, so-called Luhansk People’s Republic, and Zaporizhzhia regions of Ukraine)). The Company will not, directly or indirectly, use the proceeds of the offering, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) for the purpose of funding any activities of or business with any person that, at the time of such funding, is the subject of Sanctions, or is in
Cuba, Iran, North Korea, Syria and the Crimean region of the Ukraine or is located, organized, or resident in a Sanctioned Country, or (ii) in any other manner that will result in a violation of Sanctions.
(jj) Sarbanes-Oxley Compliance. The Company and the Guarantor and their respective directors and officers, in their capacities as such, are in compliance in all
material respects with the applicable provisions of the Sarbanes-Oxley Act of 2002 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.
Any certificate signed by an officer of the Company and delivered to the Underwriters or to counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the
matters set forth therein.
(kk) Cybersecurity; Data Protection. The Company, its subsidiaries and the Guarantor have implemented and maintained commercially reasonable controls, policies, procedures
and safeguards reasonably designed to maintain and protect the integrity, redundancy and security of all information technology assets, including hardware, software, databases and networks, of each of the Company, its subsidiaries and the Guarantor,
(collectively, “IT Systems”) and data (including all personal, personally identifiable, sensitive, confidential, nonpublic personal information or regulated data (“Personal Data”))
used in connection with their businesses, and, to their knowledge, there have been no unauthorized uses of or accesses to the same which would reasonably be expected to, individually or in the aggregate, result in a Material Adverse Change. The
Company, its subsidiaries and the Guarantor are in compliance in all material respects with the requirements of all applicable laws or statutes and all judgments, orders, rules and regulations of any court or arbitrator or governmental or regulatory
authority, internal and publicly posted policies and contractual obligations relating to the security of IT Systems or the security or processing of Personal Data, except in such instances in which the failure to comply therewith, either individually
or in the aggregate, would not reasonably be expected to result in a Material Adverse Change.
SECTION 2. Purchase, Sale
and Delivery of the Securities.
(a) The Securities. The Company agrees to issue and sell to the Underwriters, all of the Securities, and, subject to the conditions set forth herein, the Underwriters
agree, severally and not jointly, to purchase from the Company the aggregate principal amount of Securities set forth opposite their names on Schedule A, at a purchase price of 99.000% of the principal amount thereof, payable on the Closing Date, in
each case, on the basis of the representations, warranties and agreements herein contained, and upon the terms herein set forth.
(b) The Closing Date. Delivery of certificates for the Securities in definitive form to be purchased by the Underwriters and payment therefor shall be made at the
offices of Simpson Thacher & Bartlett LLP, 425 Lexington Avenue, New York, New York 10017 (or such other place as may be agreed to by the Company and the Representative) at 9:00 a.m. New York City time, on November 4, 2024 or such other time and
date as the Representative shall designate by notice to the Company (the time and date of such closing are called the “Closing Date”).
(c) Delivery of the Securities. The Company shall deliver, or cause to be delivered, to the Representative for the accounts of the several Underwriters certificates for
the Securities at the Closing Date against the irrevocable release of a wire transfer of immediately available funds for the amount of the purchase price therefor. Delivery of the Securities shall be made through the facilities of The Depository
Trust Company (“DTC”).
(d) Public Offering of the Securities. The Representative hereby advises the Company that the Underwriters intend to offer for sale to the public, as described in the
Disclosure Package and the Prospectus, their respective portions of the Securities as soon after this Agreement has been executed by the Representative, pursuant to the terms of this Agreement.
SECTION 3. Additional Covenants. The Company and Guarantor further covenant and agree with each Underwriter as follows:
(a) Representative’s Review of Proposed Amendments and Supplements. During the period beginning at the
Applicable Time and ending on the later of the Closing Date or such date, as in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales by an Underwriter or dealer, including
in circumstances where such requirement may be satisfied pursuant to Rule 172 (the “Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement, the Disclosure Package or the
Prospectus, the Company shall furnish to the Representative for review a copy of each such proposed amendment or supplement.
(b) Securities Act Compliance. After the date of this Agreement and during the Prospectus Delivery Period,
the Company shall promptly advise the Representative in writing (i) when the Registration Statement, if not effective at the Applicable Time, shall have become effective, (ii) of the receipt of any comments of, or requests for additional or
supplemental information from, the Commission, (iii) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus or the Prospectus, (iv) of the time and
date that any post-effective amendment to the Registration Statement becomes effective, and (v) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order or notice preventing or
suspending the use of the Registration Statement, any Preliminary Prospectus or the Prospectus, or of any receipt by the Company of any notification with respect to the suspension of the qualification of the Securities for sale in any jurisdiction or
of the threatening or initiation of any proceedings for any of such purposes (including any notice or order pursuant to Section 8A or Rule 401(g)(2) of the Securities Act). The Company shall use commercially reasonable efforts to prevent the
issuance of any such stop order or notice of prevention or suspension of such use. The Company will effect all filings required under Rule 424(b) in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)).
The Company hereby expressly acknowledges that the indemnification and contribution provisions of Sections 8 and 9 hereof are specifically applicable and relate to each prospectus, amendment or supplement referred to in
this Section 3.
(c) Delivery of Prospectus to the Underwriters. Not later than 10:00 a.m. on the second business day following the date of this Agreement, the Company shall deliver or
cause to be delivered, copies of the Prospectus in such quantities and at such places as the Representative shall reasonably request.
(d) Exchange Act Compliance. During the Prospectus Delivery Period, the Company and the Guarantor will file
all documents required to be filed with the Commission and the Financial Industry Regulatory Authority pursuant to Section 13, 14 or 15 of the Exchange Act in the manner and within the time periods required by the Exchange Act.
(e) Permitted Free Writing Prospectuses. Each of the Company and the Guarantor agrees that, unless it obtains
the prior written consent of the Representative, it will not make any offer relating to the Securities that constitutes or would constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a “free writing
prospectus” (as defined in Rule 405 of the Securities Act) or a portion thereof required to be filed by the Company or the Guarantor with the Commission or retained by the Company or the Guarantor under Rule 433 of the Securities Act; provided that the prior written consent of the Representative hereto shall be deemed to have been given in respect of the Free Writing Prospectuses included in Schedule C hereto and any electronic road show. Any
such free writing prospectus consented to by the Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.”
(f) Amendments and Supplements to the Registration Statement, Disclosure Package and Prospectus and Other Securities Act Matters. If, during the Prospectus Delivery Period, any event or development shall occur or condition exist as a result of which the Disclosure Package or the Prospectus 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 existing at that subsequent time, not misleading, or if it shall be necessary to amend or supplement the
Disclosure Package or the Prospectus in order to make the statements therein, in the light of the circumstances existing at that subsequent time, not misleading, or if in the reasonable judgment of the Representative it is otherwise necessary to
amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, in order to comply with law, including in connection with the delivery of the Prospectus, each of the Company and the Guarantor agrees to (i) notify the
Representative of any such event or condition and (ii) file with the Commission (and use its best efforts to have any amendment to the Registration Statement or any new registration statement to be declared effective) and furnish at its own expense
to the Underwriters and to dealers, amendments or supplements to the Registration Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary in order to make the statements in the Disclosure Package or the
Prospectus as so amended or supplemented, in the light of the circumstances under which they were made or then prevailing, as the case may be, not misleading or so that the Registration Statement, the Disclosure Package or the Prospectus, as amended
or supplemented, will comply with law.
(g) Copies of Any Amendments and Supplements to the Prospectus. Each of the Company and the Guarantor agrees to furnish to the Representative, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any amendments and supplements thereto (excluding any documents incorporated or deemed incorporated by reference therein) and the Disclosure Package as the Representative may reasonably
request.
(h) Blue Sky Compliance. Each of the Company and the Guarantor shall cooperate with the Representative and counsel for the Underwriters to qualify or register (or to
obtain exemptions from qualifying or registering) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or any other jurisdictions designated by the
Representative, shall comply with such laws and shall continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Securities. Notwithstanding the foregoing, the Company and the Guarantor shall
not be required to qualify as a foreign corporation or to take any action that would subject it to general service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign
corporation. Each of the Company and the Guarantor will advise the Representative promptly of the suspension of the qualification or registration of (or any such exemption relating to) the Securities for offering, sale or trading in any jurisdiction
or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such qualification, registration or exemption, each of the Company and the Guarantor shall use its reasonable best efforts to
obtain the withdrawal thereof at the earliest possible moment.
(i) Use of Proceeds. The Company shall apply the net proceeds from the sale of the Securities sold by it in the manner described under the caption “Use of Proceeds” in
the Disclosure Package.
(j) DTC. The Company will cooperate with the Underwriters and use its reasonable best efforts to permit the Securities to be eligible for “book-entry” transfer and
settlement through the facilities of DTC.
(k) Agreement Not To Offer or Sell Additional Securities. During the period of 30 days following the date hereof, the Company will not, without the prior written consent
of BNPP (which consent may be withheld at the discretion of BNPP), sell, offer to sell or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule 16a-1 under the Exchange Act, or otherwise
dispose of or transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any unsecured debt securities of the Company that are substantially similar to the Securities, except for the Securities
sold pursuant to this Agreement and except for exchanges or other similar transactions. The foregoing restriction shall not apply to an issue of debt securities denominated in a currency other than U.S. dollars or to an issue of debt securities at
least 90% of which is offered and sold outside the United States.
(l) Filing Fees. The Company agrees to pay the required Commission filing fees relating to the Securities within the time required by Rule 456(b)(1) of the Securities
Act without regard to the proviso therein.
(m) Compliance with Sarbanes-Oxley Act. During the Prospectus Delivery Period, the Company will comply with all applicable securities and other laws, rules and
regulations, including, without limitation, the Sarbanes-Oxley Act, and use its best efforts to cause the Company’s directors and officers, in their capacities as such, to comply with such laws, rules and regulations, including, without limitation,
the provisions of the Sarbanes-Oxley Act.
(n) No Manipulation of Price. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably
be expected to constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of any securities of the Company to facilitate the sale or resale of the Securities.
The Representative on behalf of the several Underwriters, may, in its sole discretion, waive in writing the performance by the Company or the Guarantor of any one or more of the foregoing covenants or extend the time for
their performance.
SECTION 4. Payment of Expenses. The Company and Guarantor agree to pay all costs, fees and expenses incurred in connection with the performance of their obligations hereunder and in connection
with the transactions contemplated hereby, including, without limitation, (i) all expenses incident to the issuance and delivery of the Securities (including all printing costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Underwriters, (iii) all fees and expenses of the Company’s counsel, independent public or certified public accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution (including any form of electronic distribution) of the Disclosure Package and the Prospectus (including financial statements and exhibits), and all amendments and
supplements thereto, the Transaction Documents, (v) all filing fees, attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Securities for offer and sale under the securities laws of the several states of the United States, the provinces of Canada or other jurisdictions reasonably designated by the Underwriters (including the cost
of preparing, printing and mailing preliminary and final blue sky or legal investment memoranda and any related supplements to the Disclosure Package or the Prospectus; provided that any such fees payable to Simpson Thacher & Bartlett LLP shall
not exceed $15,000), (vi) the fees and expenses of the Trustee, including the fees and disbursements of counsel for the Trustee in connection with the Indenture and the Securities, (vii) any fees payable in connection with the rating of the
Securities with the ratings agencies, (viii) any filing fees incident to, and any reasonable fees and disbursements of counsel to the Underwriters in connection with the review by the Financial Industry Regulatory Authority (“FINRA”), if any, of the terms of the sale of the Securities, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Securities by DTC for
“book-entry” transfer, and the performance by the Company of its other obligations under this Agreement and (x) all expenses incident to the “road show” for the offering of the Securities, including the cost of any transportation (it being
understood that the Underwriters, collectively, shall bear their own transportation and other “road show” travel expenses). Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses,
including the fees and disbursements of their counsel.
SECTION 5. Conditions. The obligations of the several Underwriters to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Guarantor set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the timely performance by the Company and the Guarantor of their
covenants and other obligations hereunder, and to each of the following additional conditions:
(a) Accountant’s Comfort Letter. On the date hereof, the Underwriters shall have received from PricewaterhouseCoopers LLP, the independent registered public accounting
firm for the Company and Parent, a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representative, covering the financial information in or incorporated by reference into the Disclosure
Package and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from PricewaterhouseCoopers LLP a “bring-down comfort letter” dated the Closing Date addressed to the Underwriters, in form and substance
satisfactory to the Representative, in the form of the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Prospectus and any amendment or supplement thereto and (ii) procedures shall be
brought down to a date no more than 5 business days prior to the Closing Date.
(b) Effectiveness of Registration Statement; Rule 430A Information. The Registration Statement, including any Rule 462(b) Registration Statement, has become effective
and, at the Closing Date, no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued under the 1933 Act, no order preventing or suspending the use of any preliminary prospectus or
the Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge, threatened by the Commission; and the Company has complied with each request (if any) from the Commission
for additional information. A prospectus containing the Rule 430A Information shall have been filed with the Commission in the manner and within the time frame required by Rule 424(b) without reliance on Rule 424(b)(8) or a post-effective amendment
providing such information shall have been filed with, and declared effective by, the Commission in accordance with the requirements of Rule 430A.
(c) No Material Adverse Change or Ratings Agency Change. For the period from and after the date of this Agreement and prior to the Closing Date,
(i) in the judgment of the Representative there shall not have occurred any Material Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate
the direction of the possible change, in the rating accorded the Company or any of its subsidiaries or any of their securities or indebtedness by any “nationally recognized statistical rating organization” registered under Section 15E of the Exchange
Act.
(d) Opinion of Counsel for the Company. On the Closing Date the Underwriters shall have received an opinion of (i) Skadden, Arps, Slate, Meagher & Flom LLP, counsel
for the Company, dated as of such Closing Date, which is reasonably satisfactory to the Representative, and (ii) Jeffrey M. Gershon, Associate General Counsel of the Company, dated as of such Closing Date, which is reasonably satisfactory to the
Representative.
(e) Opinion of Counsel for the Underwriters. On the Closing Date the Underwriters shall have received the favorable opinion of Simpson Thacher & Bartlett LLP,
counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
(f) Officer’s Certificate. On the Closing Date the Underwriters shall have received a written certificate executed by one of the Chief Financial Officer, Treasurer or
Chief Accounting Officer of the Company or the Guarantor, in his capacity as such officer only, dated as of the Closing Date, to the effect set forth in Section 5(c)(ii) hereof, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior to the Closing Date there has not occurred any Material Adverse Change;
(ii) the representations and warranties of the Company and the Guarantor in this Agreement are true and correct, as of the date hereof and are true and correct as of the Closing Date with the
same force and effect as though expressly made on and as of the Closing Date;
(iii) the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date; and
(iv) no stop order suspending the effectiveness of the Registration Statement under the 1933 Act has been issued, no order preventing or suspending the use of any preliminary prospectus or the
Prospectus has been issued and no proceedings for any of those purposes have been instituted or are pending or, to their knowledge, threatened by the Commission.
(g) [Reserved].
(h) Indenture. The Company shall have executed and delivered the Supplemental Indenture, in form and substance reasonably satisfactory to the Underwriters, and the
Underwriters shall have received executed copies thereof.
(i) Additional Documents. On or before the Closing Date, the Underwriters and counsel for the Underwriters shall have received such information, documents and opinions
as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Securities as contemplated herein, or in order to evidence the accuracy of any of the representations and warranties, or the satisfaction of
any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing
Date, which termination shall be without liability on the part of any party to any other party, except that Sections 4, 6, 8 and 9 hereof shall at all times be effective and shall survive such termination.
SECTION 6. Reimbursement of Underwriters’ Expenses. If this Agreement is terminated by the Representative or the Company pursuant to Section 5 or 10 hereof, including if the sale to
the Underwriters of the Securities on the Closing Date is not consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to
reimburse the Underwriters, severally, upon demand for all reasonable and documented out-of-pocket expenses that shall have been reasonably incurred by the Underwriters in connection with the proposed purchase and the offering and sale of the
Securities, including, without limitation, reasonable fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges.
SECTION 7. Certain Agreements of the Underwriters. Each Underwriter hereby represents and agrees that it has not used, authorized use of, referred to, or participated in the planning
of use of, 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 Company and Guarantor and not incorporated by reference into the Registration Statement and any press release issued by the Company and Guarantor) 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 Schedule C or prepared pursuant to Section 1(f) or Section 3(e) above
(including any electronic road show), or (iii) any free writing prospectus prepared by such Underwriter and approved by the Company and Guarantor in advance in writing. Notwithstanding the foregoing, the Underwriters may use the pricing supplement
substantially in the form of Schedule B hereto without the consent of the Company and Guarantor.
SECTION 8. Indemnification.
(a) Indemnification of the Underwriters. The Company and the Guarantor, jointly and severally, agree to indemnify and hold harmless each Underwriter, its affiliates,
directors, officers, agents and employees, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any loss, claim, damage, liability or expense, as incurred, to which such
Underwriter, affiliate, director, officer, employee, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon (i)
upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, including any information deemed to be a part thereof pursuant to Rule 430B or 430C under the Securities Act,
or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading or (ii) any untrue statement or alleged untrue statement of a material fact contained in the
Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were
made, not misleading; and to reimburse each Underwriter and each such affiliate, director, officer, employee, agent or controlling person for any and all documented expenses (including the reasonable fees and disbursements of counsel chosen by the
Representative) as such expenses are reasonably incurred by such Underwriter or such affiliate, director, officer, employee, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply, with respect to an Underwriter, to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising
out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by such Underwriter through the Representative expressly
for use in the Disclosure Package or the Final Prospectus (or any amendment or supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to any liabilities that the Company and the Guarantor may otherwise have.
(b) Indemnification of the Company and the Guarantor. Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company and the Guarantor,
each of their respective affiliates, officers, directors and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which the
Company, or any such director or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or regulation, or at common law or otherwise (including in settlement of any litigation, if
such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is based upon any untrue statement or alleged
untrue statement of a material fact contained in the Disclosure Package or the Prospectus (or any amendment or supplement thereto), or the omission or alleged omission therefrom of 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 to the extent, but only to the extent, that such untrue statement or alleged untrue statement or omission or alleged omission was made in the Disclosure Package
or the Prospectus (or any amendment or supplement thereto), in reliance upon and in conformity with written information furnished to the Company and the Guarantor by such Underwriter through the Representative expressly for use therein; and to
reimburse the Company and each such director or controlling person for any and all expenses (including the fees and disbursements of counsel) as such expenses are reasonably incurred by the Company or the Guarantor or such director or controlling
person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action. The Company and the Guarantor hereby acknowledge that the only information that the Underwriters through
the Representative have furnished to the Company and the Guarantor expressly for use in the Disclosure Package or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the (x) first sentence of the fifth paragraph,
(y) the third sentence of the eighth paragraph and (z) the tenth, eleventh, thirteenth and fourteenth paragraphs, in each case, under the caption “Underwriting” in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth in
this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c) Notifications and Other Indemnification Procedures. Promptly after receipt by an indemnified party under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the commencement thereof; provided that the failure to so notify the indemnifying
party will not relieve it from any liability which it may have to any indemnified party under this Section 8 except to the extent that it has been materially prejudiced by such failure (through the forfeiture of substantive rights and defenses) and
shall not relieve the indemnifying party from any liability that the indemnifying party may have to an indemnified party other than under this Section 8. In case any such action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be entitled to participate in and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice
delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying party and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the
defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right
to select separate counsel to assume such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such
indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party will not be liable to such indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in accordance with the proviso to the immediately preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel (in each jurisdiction)), which shall be selected by the Representative (in the case of counsel representing the
Underwriters or their related persons), representing the indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in each of which cases the fees and expenses of counsel shall be at the expense of the indemnifying party.
(d) Settlements. The indemnifying party under this Section 8 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 party agrees to indemnify the indemnified party against any loss, claim, damage, liability or expense by reason of such settlement or judgment. No
indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect of which any indemnified
party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding and (ii) does not include any statements as to or any findings of fault, culpability or failure to act by or on behalf of any indemnified party.
SECTION 9. Contribution. If the indemnification provided for in Section 8 hereof is for any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified party in
respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or payable by such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, from the offering of
the Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, and the total discount received by the
Underwriters bear to the aggregate initial offering price of the Securities. The relative fault of the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Guarantor, on the one hand, or the Underwriters, on the other
hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses referred to above shall be deemed to include, subject to the limitations set forth in Section 8 hereof, any legal
or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The provisions set forth in Section 8 hereof with respect to notice of commencement of any action shall apply if a claim
for contribution is to be made under this Section 9; provided, however, that no additional notice shall be required with respect to any action for which notice has been given under Section 8 hereof for purposes of indemnification.
The Company, the Guarantor and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 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 which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the discount received by such Underwriter in connection with the Securities distributed by it. No
person guilty of fraudulent misrepresentation (within the meaning of Section 11 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 9 are several, and not joint, in proportion to their respective commitments as set forth opposite their names in Schedule A. For purposes of this Section 9, each Affiliate director, officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company or the Guarantor, and each
person, if any, who controls the Company or the Guarantor with the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as the Company or the Guarantor.
SECTION 10. Termination of This Agreement. Prior to the Closing Date, this Agreement may be terminated by the Representative by notice given to the Company and the Guarantor if at any time: (i) trading
in securities generally on either the Nasdaq Stock Market or the New York Stock Exchange shall have been suspended or limited, or minimum or maximum prices shall have been generally established on any of such quotation system or stock exchange by
the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any of federal or New York authorities; (iii) there shall have occurred any outbreak or escalation of national or international hostilities or any crisis or
calamity, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change in United States’ or international political, financial or economic conditions, as
in the judgment of the Representative is material and adverse and makes it impracticable or inadvisable to proceed with the offering sale or delivery of the Securities in the manner and on the terms described in the Disclosure Package or to enforce
contracts for the sale of securities; or (iv) in the judgment of the Representative there shall have occurred any Material Adverse Change. Any termination pursuant to this Section 10 shall be without liability on the part of (i) the Company and
the Guarantor to any Underwriter, except that the Company shall be obligated, solely in the case of a termination pursuant to clause (iv) above, to reimburse the expenses of the Underwriters pursuant to Sections 4 and 6 hereof, (ii) any Underwriter
to the Company, or (iii) any party hereto to any other party except that the provisions of Sections 8 and 9 hereof shall at all times be effective and shall survive such termination.
SECTION 11. Representations and Indemnities to Survive Delivery. The respective indemnities, agreements, representations, warranties and other statements of the Company, its officers and the
several Underwriters set forth in or made pursuant to this Agreement will remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter, the Company, or any of its partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment for the Securities sold hereunder and any termination of this Agreement.
SECTION 12. Notices. All communications hereunder shall be in writing and shall be mailed, hand delivered, couriered or facsimiled and confirmed to the parties hereto as follows:
| |
If to the Underwriters:
|
| |
|
| |
|
BNP Paribas Securities Corp.
|
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|
787 Seventh Avenue
|
| |
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New York, New York 10019
|
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United States
|
| |
|
Attention: Syndicate Desk
|
| |
|
E-mail: DL.US.Syndicate.Support@us.bnpparibas.com
|
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With a copy to:
|
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|
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Simpson Thacher & Bartlett LLP
|
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|
425 Lexington Avenue
|
| |
|
New York, New York 10017
|
| |
|
Facsimile:
|
(212) 455-2502
|
| |
|
Attention:
|
David Azarkh
|
| |
|
| |
If to the Company or the Guarantor:
|
| |
|
| |
|
OneMain Finance Corporation
|
| |
|
601 N.W. Second Street
|
| |
|
Evansville, Indiana 47708
|
| |
|
Facsimile:
|
(812) 468-5352
|
| |
|
Attention:
|
Treasurer
|
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|
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With a copy to:
|
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|
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Skadden, Arps, Slate, Meagher & Flom LLP
|
| |
|
One Manhattan West
|
| |
|
New York, New York 10001
|
| |
|
Facsimile:
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(212) 735-2000
|
| |
|
Attention:
|
Michael J. Schwartz
|
Any party hereto may change the address or facsimile number for receipt of communications by giving written notice to the others.
SECTION 13. Successors. This Agreement will inure to the benefit of and be binding upon the parties hereto, and to the benefit of the indemnified parties referred to in Sections 8 and 9 hereof,
and in each case their respective successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any Subsequent Purchaser or other purchaser of the Securities as such from any of the
Underwriters merely by reason of such purchase.
SECTION 14. Authority of the Representative. Any action by the Underwriters hereunder may be taken by the Representative on behalf of the Underwriters, and any such action taken by the
Representative shall be binding upon the Underwriters.
SECTION 15. Partial Unenforceability. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section,
paragraph or provision hereof. If any section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary
to make it valid and enforceable.
SECTION 16. Governing Law Provisions; Consent to Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
Any legal suit, action or proceeding arising out of or based upon this Agreement or the transactions contemplated hereby (“Related Proceedings”) may 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 party 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 a “Related
Judgment”, 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 party’s address set forth above shall be effective service of
process for any Related Proceeding brought in any Specified Court. The parties 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.
SECTION 17. Default of One or More of the Several Underwriters. If any one or more of the several Underwriters shall fail or refuse to purchase Securities that it or they have agreed to purchase
hereunder on the Closing Date, and the aggregate number of Securities which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not exceed 10% of the aggregate number of the Securities to be purchased on such
date, the other Underwriters shall be obligated, severally, in the proportions that the number of Securities set forth opposite their respective names on Schedule A bears to the aggregate number of Securities set forth opposite the names of all
such non-defaulting Underwriters, or in such other proportions as may be specified by the Underwriters with the consent of the non-defaulting Underwriters, to purchase the Securities which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on the Closing Date. If any one or more of the Underwriters shall fail or refuse to purchase Securities and the aggregate number of Securities with respect to which such default occurs exceeds 10% of the aggregate
number of Securities to be purchased on the Closing Date, and arrangements satisfactory to the Underwriters and the Company for the purchase of such Securities are not made within 48 hours after such default, this Agreement shall terminate without
liability of any party to any other party except that the provisions of Sections 4, 6, 8 and 9 hereof shall at all times be effective and shall survive such termination. In any such case either the Underwriters or the Company shall have the right
to postpone the Closing Date, as the case may be, but in no event for longer than seven days in order that the required changes, if any, to the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 17. Any action taken under this
Section 17 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this Agreement.
SECTION 18. No Advisory or Fiduciary Responsibility. The Company acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this Agreement, including the
determination of the offering price of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is
capable of evaluating and understanding and understand and accept the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such
transaction each Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume
an advisory or fiduciary responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on
other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company, and the several Underwriters have no obligation to disclose any of such interests by virtue of any fiduciary or advisory relationship; and (v) the Underwriters have not provided any legal, accounting,
regulatory or tax advice with respect to the offering contemplated hereby, and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several Underwriters, or any of them, with respect to the subject matter hereof. The Company hereby
waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged breach of fiduciary duty.
SECTION 19. Recognition of the U.S. Special Resolution Regimes.
(a) In the event that any Underwriter that is a Covered Entity (as defined below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of
this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were
governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate (as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights
(as defined below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were
governed by the laws of the United States or a state of the United States.
(c) For purposes of this Section 19, (i) the term “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k); (ii) “Covered Entity”
means any of the following: (x) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b), (y) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b), or
(z) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b); (iii) “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1,
as applicable; and (iv) “U.S. Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the
regulations promulgated thereunder.
SECTION 20. General Provisions; Electronic Signatures. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may be executed in counterparts, each of which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Agreement or in any other certificate, agreement or document related to this Agreement or the other
Transaction Documents shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation,
DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same
legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce
Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code. This Agreement may not be
amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The section headings herein are for the
convenience of the parties only and shall not affect the construction or interpretation of this Agreement.
[Signature Pages Follow]
If the foregoing is in accordance with your understanding of our agreement, kindly sign and return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a
binding agreement in accordance with its terms.
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Very truly yours, |
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|
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ONEMAIN FINANCE CORPORATION
|
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By:
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/s/ David R. Schulz
|
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|
Name:
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David R. Schulz
|
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Title:
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Senior Vice President and Treasurer
|
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ONEMAIN HOLDINGS, INC.
|
| |
|
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By:
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/s/ David R. Schulz
|
| |
|
Name:
|
David R. Schulz
|
| |
|
Title:
|
Senior Vice President and Treasurer
|
[Signature Page to Underwriting Agreement]
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriters as of the date first above written.
|
BNP PARIBAS SECURITIES CORP.
Acting on behalf of itself
and as a Representative of
the several Underwriters
|
|
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|
|
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By:
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/s/ Ali Mehdi
|
|
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Name:
|
Ali Mehdi
|
|
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Title:
|
Managing Director
|
|
|
By:
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/s/ Nathan Harwood
|
|
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Name:
|
Nathan Harwood
|
|
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Title:
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Director
|
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[Signature Page to Underwriting Agreement]
SCHEDULE A
|
|
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Aggregate
Principal
Amount of
Securities to be
Purchased
|
|
|
BNP Paribas Securities Corp.
|
|
$
|
103,500,000
|
|
|
Mizuho Securities USA LLC
|
|
$
|
99,000,000
|
|
|
Barclays Capital Inc.
|
|
$
|
99,000,000
|
|
|
Citigroup Global Markets Inc.
|
|
$
|
58,500,000
|
|
|
Citizens JMP Securities, LLC
|
|
$
|
36,000,000
|
|
|
Deutsche Bank Securities Inc.
|
|
$
|
36,000,000
|
|
|
Goldman Sachs & Co. LLC
|
|
$
|
36,000,000
|
|
|
HSBC Securities (USA) Inc.
|
|
$
|
63,000,000
|
|
|
NatWest Markets Securities Inc.
|
|
$
|
54,000,000
|
|
|
RBC Capital Markets, LLC
|
|
$
|
99,000,000
|
|
|
Regions Securities LLC
|
|
$
|
36,000,000
|
|
|
SMBC Nikko Securities America, Inc.
|
|
$
|
36,000,000
|
|
|
TD Securities (USA) LLC
|
|
$
|
36,000,000
|
|
|
Truist Securities, Inc.
|
|
$
|
36,000,000
|
|
|
Wells Fargo Securities, LLC
|
|
$
|
72,000,000
|
|
|
Total
|
|
$
|
900,000,000
|
|
SCHEDULE B
Filed pursuant to Rule 433
Issuer Free Writing Prospectus, dated October 31, 2024
Supplementing the Preliminary Prospectus Supplement, dated October 31, 2024
Registration No. 333-274956
333-274956-01
$900,000,000
OneMain
Finance Corporation
6.625%
Senior Notes due 2029
This pricing supplement (this “Pricing Supplement”) is qualified in its entirety by reference to the
preliminary prospectus supplement dated October 31, 2024 (the “Preliminary Prospectus Supplement”).
The information in this Pricing Supplement supplements the Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent inconsistent with the information in the
Preliminary Prospectus Supplement. Terms used but not defined herein shall have the meanings assigned to them in the Preliminary Prospectus Supplement.
$900,000,000
6.625% Senior Notes due 2029
|
Issuer:
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OneMain Finance Corporation (the “Issuer”)
|
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|
|
Guarantor:
|
OneMain Holdings Inc. (the “Guarantor”)
|
| |
|
|
Aggregate Principal Amount:
|
$900,000,000
|
| |
|
|
Title of Securities:
|
6.625% Senior Notes due 2029 (the “notes”)
|
| |
|
|
Maturity Date:
|
May 15, 2029
|
| |
|
|
Offering Price:
|
100.000%, plus accrued interest, if any, from November 4, 2024
|
| |
|
|
Coupon:
|
6.625%
|
| |
|
|
Yield:
|
6.625%
|
| |
|
|
Spread:
|
+247 basis points
|
|
Benchmark Treasury:
|
4.500% UST due May 31, 2029
|
| |
|
|
Gross Proceeds to Issuer:
|
$900,000,000
|
| |
|
|
Net Proceeds to Issuer After Gross Spread:
|
$891,000,000
|
| |
|
|
Gross Spread:
|
1.000%
|
| |
|
|
Distribution:
|
SEC Registered
|
| |
|
|
CUSIP and ISIN Numbers:
|
CUSIP: 682691 AH3
ISIN: US682691AH34
|
| |
|
|
Denominations:
|
$2,000 and integral multiples of $1,000
|
| |
|
|
Interest Payment Dates:
|
May 15 and November 15
|
| |
|
|
First Interest Payment Date:
|
May 15, 2025
|
| |
|
|
Record Dates:
|
May 1 and November 1
|
| |
|
|
Optional Redemption:
|
Except as set forth in the next two succeeding paragraphs, the notes are not subject to redemption prior to the Stated Maturity, and there is no sinking fund for the notes.
|
| |
|
| |
On and after November 15, 2028 (six months prior to the maturity date) the Issuer may redeem, at its option, all or, from time to time, part of the notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy to the
Series Trustee), at a redemption price equal to 100% of the principal amount of the notes to be redeemed, plus accrued and unpaid interest on the notes, if any, to, but excluding, the applicable redemption date (subject to the right of
holders of record on the relevant record date to receive interest due on the relevant interest payment date).
|
| |
|
|
In addition, prior to November 15, 2028 (six months prior to the maturity date), the Issuer may redeem, at its option, all or, from time to time, part of the notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy
to the Series Trustee) at a redemption price equal to (expressed as a percentage of principal amount and rounded to three decimal places) the greater of:
(1) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the notes matured on November 15, 2028) on a semi-annual basis (assuming a 360-day
year consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the date of redemption, and
(2) 100% of the principal amount of the notes to be redeemed,
plus, in either case, accrued and unpaid interest thereon to, but excluding the redemption date (subject to the right of holders of record on the relevant record date to receive interest due on the relevant interest payment date).
|
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“Treasury Rate” means, as of any redemption date, the yield to maturity as of such redemption date of United States Treasury securities with a constant maturity (as compiled and published in the
most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the redemption date (or, if such Statistical Release is no longer published, any publicly available source
of similar market data)) most nearly equal to the period from the redemption date to November 15, 2028; provided, however, that if the period from the redemption date to November 15, 2028 of such notes is less than one year, the weekly
average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
|
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|
|
Joint Book-Running Managers:
|
BNP Paribas Securities Corp.
Mizuho Securities USA LLC
Barclays Capital Inc.
Citigroup Global Markets Inc.
Citizens JMP Securities, LLC
Deutsche Bank Securities Inc.
Goldman Sachs & Co. LLC
HSBC Securities (USA) Inc.
NatWest Markets Securities Inc.
RBC Capital Markets, LLC
Regions Securities LLC
SMBC Nikko Securities America, Inc.
TD Securities (USA) LLC
Truist Securities, Inc.
Wells Fargo Securities, LLC
|
|
Trade Date:
|
October 31, 2024
|
| |
|
|
Settlement Date:
|
November 4, 2024 (T+2). It is expected that delivery of the notes will be made against payment therefor on or about November 4, 2024, which is the 2nd
business day following the date hereof (such settlement cycle being referred to as “T+2”). Pursuant to Rule 15c6-1 under the Exchange Act, trades in the secondary market generally are required to settle in one business day unless the
parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the notes more than one business day prior to the settlement date will be required, by virtue of the fact that the notes initially will settle
in T+2, to specify an alternative settlement cycle at the time of any such trade to prevent failed settlement. Purchasers of the notes who wish to trade such notes prior to their date of delivery should consult their own advisors.
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Ratings*:
|
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*A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision, suspension or withdrawal at any time. Each credit rating should be evaluated independently of any other credit rating.
Changes from Preliminary Prospectus Supplement
The Preliminary Prospectus Supplement is hereby updated to reflect the following changes:
The total size of the offering has increased from $500.0 million to $900.0 million. The additional proceeds from the offering will be used for general corporate purposes, which may include debt repurchases or repayments.
As a result of the change in offering size, all information (including financial information) presented in the Preliminary Prospectus Supplement is deemed to have changed to the extent affected by the changes described herein.
The Issuer has filed a registration statement (including a prospectus and related Preliminary Prospectus Supplement for the offering) with the U.S. Securities and Exchange Commission (the “SEC”) for the offering to
which this communication relates. Before you invest, you should read the Preliminary Prospectus Supplement, the accompanying prospectus in that registration statement and the 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’s website 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 contacting BNP Paribas Securities Corp. at +1 (800) 854-5674.
This communication should be read in conjunction with the Preliminary Prospectus Supplement and the accompanying prospectus. The information in this communication supersedes the information in the Preliminary
Prospectus Supplement and the accompanying prospectus to the extent it is inconsistent with the information in such Preliminary Prospectus Supplement or the accompanying prospectus.
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.
SCHEDULE C
Issuer Free Writing Prospectuses
The pricing supplement listed on Schedule B.
EXHIBIT A
List of Subsidiaries
|
Subsidiaries of OneMain Holdings, Inc. *
|
|
Jurisdiction of
Incorporation
|
| |
|
|
|
AGFC Capital Trust I
|
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Delaware
|
|
American Health and Life Insurance Company
|
|
Texas
|
|
Chicago River Funding, LLC
|
|
Delaware
|
|
Columbia River Funding, LLC
|
|
Delaware
|
|
CommoLoCo, Inc.
|
|
Puerto Rico
|
|
CREDITHRIFT of Puerto Rico, Inc.
|
|
Puerto Rico
|
|
Foursight Capital Automobile Receivables Trust 2021-1
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2021-2
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2022-1
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2022-2
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2023-1
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2023-2
|
|
Delaware
|
|
Foursight Capital Automobile Receivables Trust 2024-1
|
|
Delaware
|
|
Foursight Capital LLC
|
|
Utah
|
|
Foursight Funding LLC
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|
Delaware
|
|
Foursight Funding II LLC
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|
Delaware
|
|
Foursight Funding III LLC
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|
Delaware
|
|
Foursight Funding IV LLC
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|
Delaware
|
|
Foursight Receivables LLC
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|
Delaware
|
|
Hubbard River Funding, LLC
|
|
Delaware
|
|
Hudson River Funding, LLC
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|
Delaware
|
|
MorEquity, Inc.
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|
Nevada
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|
Mystic River Funding, LLC
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|
Delaware
|
|
New River Funding, LLC
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|
Delaware
|
|
New River Funding Trust
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|
Delaware
|
|
OMF Services, LLC
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|
Delaware
|
|
OneMain Alliance, LLC
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|
Texas
|
|
OneMain Assurance Services, LLC
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|
Texas
|
|
OneMain Consumer Loan, Inc.
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|
Delaware
|
|
OneMain Direct Auto Funding, LLC
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|
Delaware
|
|
OneMain Direct Auto Receivables Trust 2019-1
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|
Delaware
|
|
OneMain Direct Auto Receivables Trust 2021-1
|
|
Delaware
|
|
OneMain Direct Auto Receivables Trust 2022-1
|
|
Delaware
|
|
OneMain Direct Auto Receivables Trust 2023-1
|
|
Delaware
|
|
OneMain Financial Auto Funding I, LLC
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|
Delaware
|
|
OneMain Financial CC Transferor, LLC
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|
Delaware
|
|
OneMain Financial Credit Card Trust
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|
Delaware
|
|
OneMain Financial (HI), Inc.
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|
Hawaii
|
|
OneMain Financial Funding III, LLC
|
|
Delaware
|
|
OneMain Financial Funding VII, LLC
|
|
Delaware
|
|
OneMain Financial Funding VIII, LLC
|
|
Delaware
|
|
OneMain Financial Funding IX, LLC
|
|
Delaware
|
|
OneMain Financial Funding X, LLC
|
|
Delaware
|
|
OneMain Financial Funding XI, LLC
|
|
Delaware
|
|
OneMain Financial Funding XII, LLC
|
|
Delaware
|
|
OneMain Financial Group, LLC
|
|
Delaware
|
|
OneMain Financial Holdings, LLC
|
|
Delaware
|
|
OneMain Financial Insurance Agency of Florida, LLC
|
|
Florida
|
|
OneMain Financial Insurance Agency of Washington, LLC
|
|
Washington
|
|
OneMain Financial Issuance Trust 2018-2
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2019-A
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2019-2
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2020-2
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2021-1
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2022–S1
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2022-2
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2022-3
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2023-1
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2023-2
|
|
Delaware
|
|
OneMain Financial Issuance Trust 2024-1
|
|
Delaware
|
|
OneMain Financial of Minnesota, Inc.
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|
Minnesota
|
|
OneMain Financial, Inc.
|
|
West Virginia
|
|
OneMain Financial Term Funding I, LLC
|
|
Delaware
|
|
OneMain Foursight Auto I, LLC
|
|
Delaware
|
|
OneMain Foursight Auto II, LLC
|
|
Delaware
|
|
OneMain Foursight Auto III, LLC
|
|
Delaware
|
|
OneMain General Services Corporation
|
|
Delaware
|
|
OneMain Mortgage Services, Inc.
|
|
Delaware
|
|
OneMain Trim, LLC
|
|
Delaware
|
|
River Thames Funding, LLC
|
|
Delaware
|
|
Second Street Funding Corporation
|
|
Delaware
|
|
Seine River Funding, LLC
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|
Delaware
|
|
Sixth Street Funding LLC
|
|
Delaware
|
|
SpringCastle Holdings, LLC
|
|
Delaware
|
|
Springleaf Acquisition Corporation
|
|
Delaware
|
|
Springleaf Asset Holding II, Inc.
|
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Delaware
|
|
Springleaf Asset Holding, Inc.
|
|
Delaware
|
|
Springleaf Branch Holding Company
|
|
Delaware
|
|
Springleaf Consumer Loan Holding Company
|
|
Delaware
|
|
Springleaf Consumer Loan of Pennsylvania, Inc.
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|
Pennsylvania
|
|
Springleaf Consumer Loan of West Virginia, Inc.
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|
West Virginia
|
|
Springleaf Depositor LLC
|
|
Delaware
|
|
Springleaf Documentation Services, Inc.
|
|
California
|
|
Springleaf Finance Commercial Corp.
|
|
Indiana
|
|
Springleaf Financial Asset Holdings, LLC
|
|
Delaware
|
|
Springleaf Financial Cash Services, Inc.
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|
Delaware
|
|
Springleaf Financial Center Thrift Company
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|
California
|
|
Springleaf Financial Funding Company
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|
Delaware
|
|
Springleaf Financial Funding Company II
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|
Delaware
|
|
Springleaf Financial Funding II Holding Company
|
|
Delaware
|
|
Springleaf Funding I, LLC
|
|
Delaware
|
|
Springleaf Funding II, LLC
|
|
Delaware
|
|
Springleaf Mortgage Holding Company
|
|
Delaware
|
|
Springleaf Properties, Inc.
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|
Indiana
|
|
St. Lawrence River Funding, LLC
|
|
Delaware
|
|
Thayer Brook Funding, LLC
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|
Delaware
|
|
Third Street Funding LLC
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|
Delaware
|
|
Triton Insurance Company
|
|
Texas
|
|
Wilmington Finance, Inc.
|
|
Delaware
|
| |
*
|
OneMain Finance Corporation is a wholly-owned direct subsidiary of OneMain Holdings, Inc.
|
Exhibit A-4
Exhibit 4.2
Execution Version
ONEMAIN FINANCE CORPORATION,
As Issuer
ONEMAIN HOLDINGS, INC.,
As Guarantor
NINETEENTH SUPPLEMENTAL INDENTURE
Dated as of
November 4, 2024
HSBC BANK USA, NATIONAL ASSOCIATION,
As Trustee
TABLE OF CONTENTS
| |
|
PAGE
|
| |
ARTICLE 1
|
|
| |
DEFINITIONS
|
|
|
Section 1.01.
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Rules of Construction
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2
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|
Section 1.02.
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Definition of Terms
|
2
|
| |
ARTICLE 2
|
|
| |
TERMS AND CONDITIONS OF THE NOTES
|
|
|
Section 2.01.
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Designation and Principal Amount
|
5
|
|
Section 2.02.
|
Execution, Authentication, Delivery and Dating
|
6
|
|
Section 2.03.
|
Original Issue of Notes; Further Issuances
|
6
|
|
Section 2.04.
|
Maturity
|
6
|
|
Section 2.05.
|
Interest
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6
|
|
Section 2.06.
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Place of Payment
|
7
|
|
Section 2.07.
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Form; Denomination
|
7
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|
Section 2.08.
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Depositary
|
7
|
| |
ARTICLE 3
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|
| |
REDEMPTION OF THE NOTES
|
|
|
Section 3.01.
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Optional Redemption
|
7
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|
Section 3.02.
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Optional Redemption by the Company
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7
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|
Section 3.03.
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Notice of Redemption
|
8
|
| |
ARTICLE 4
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|
| |
COVENANTS
|
|
|
Section 4.01.
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Covenants
|
9
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| |
ARTICLE 5
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|
| |
NO SINKING FUNDS
|
|
|
Section 5.01.
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No Sinking Funds
|
15
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| |
ARTICLE 6
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|
| |
EVENTS OF DEFAULT
|
|
|
Section 6.01.
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Events of Default
|
15
|
| |
ARTICLE 7
|
|
| |
CONCERNING THE TRUSTEE
|
|
|
Section 7.01.
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Series Trustee Designation
|
16
|
|
Section 7.02.
|
Rights of the Series Trustee
|
17
|
| |
ARTICLE 8
|
|
| |
DEFEASANCE; SATISFACTION AND DISCHARGE
|
|
|
Section 8.01.
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Defeasance
|
17
|
|
Section 8.02.
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Conditions to Legal or Covenant Defeasance
|
17
|
|
Section 8.03.
|
Satisfaction and Discharge
|
20
|
| |
ARTICLE 9
|
|
| |
MODIFICATION AND WAIVER
|
|
|
Section 9.01.
|
Modification and Waiver
|
18
|
| |
ARTICLE 10
|
|
| |
GUARANTEES
|
|
|
Section 10.01.
|
Guarantees
|
18
|
| |
ARTICLE 11
|
|
| |
MISCELLANEOUS
|
|
|
Section 11.01.
|
Section Provisions of Base Indenture Not Applicable
|
19
|
|
Section 11.02.
|
Ratification of Indenture
|
19
|
|
Section 11.03.
|
Effects of Headings and Table of Contents
|
19
|
|
Section 11.04.
|
GOVERNING LAW; WAIVER OF TRIAL BY JURY
|
19
|
|
Section 11.05.
|
Counterparts; Originals
|
20
|
|
Section 11.06.
|
Force Majeure
|
20
|
|
Section 11.07.
|
U.S.A. Patriot Act
|
20
|
|
Section 11.08.
|
Sanctions
|
20
|
|
Section 11.09.
|
Notices to the Company and Trustee
|
20
|
|
Section 11.10.
|
Notices to Holders of Notes; Waiver
|
20
|
|
Section 11.11.
|
Successors and Assigns
|
21
|
|
Section 11.12.
|
Separability Clause
|
21
|
|
Section 11.13.
|
Benefits of Supplemental Indenture
|
21
|
NINETEENTH SUPPLEMENTAL INDENTURE, dated as of November 4, 2024 (this “Supplemental Indenture”), among
OneMain Finance Corporation, an Indiana corporation (the “Company”), OneMain Holdings, Inc., a Delaware corporation (“OMH”), as a Guarantor, and HSBC Bank USA, National
Association, a national banking association, as Series Trustee (in such capacity, and solely with respect to the Designated Series of Securities provided for herein, the “Trustee”).
WHEREAS, the Company is party to a base Indenture, dated as of December 3, 2014, among the Company, OMH, as a Guarantor, and Wilmington Trust,
National Association, a national banking association, as trustee (the “Original Trustee”) (as amended, supplemented or otherwise modified from time to time, including by the Fourteenth Supplemental Indenture
(as defined below), the “Base Indenture” and, together with this Supplemental Indenture, the “Indenture”), providing for, among other things, the future issuance of the
Company’s Securities to be issued from time to time in one or more series as might be determined by the Company under the Base Indenture, in an unlimited aggregate principal amount which may be authenticated and delivered as provided in the Base
Indenture;
WHEREAS, the Company is party to a Fourteenth Supplemental Indenture, dated as of June 20, 2023, among the Company, OMH, as a Guarantor, the
Original Trustee and the Trustee (the “Fourteenth Supplemental Indenture”), permitting the Company to designate and appoint the Trustee to serve as Series Trustee under the Base Indenture with respect to any
one or more series of Securities that may be issued from time to time after the date of the Fourteenth Supplemental Indenture;
WHEREAS, Section 15.01 of the Base Indenture provides for various matters with respect to any series of Securities issued under the Base Indenture
to be established in an indenture supplemental to the Base Indenture, including the form or terms of Securities of any series as provided by Sections 2.01 and 3.01 of the Base Indenture;
WHEREAS, the Board of Directors has duly adopted resolutions authorizing the Company to execute and deliver this Supplemental Indenture;
WHEREAS, the Company desires to provide for the establishment of a new series of its Securities to be known as its 6.625% Senior Notes due 2029
(the “Initial Notes”), the form and substance of such Notes and the terms, provisions and conditions thereof to be set forth as provided in the Base Indenture and this Supplemental Indenture;
WHEREAS, the Company desires to designate and appoint HSBC Bank USA, National Association, to serve as Trustee under the Indenture with respect to
the Notes, with the effect of causing the Notes to constitute a Designated Series (as defined in the Fourteenth Supplemental Indenture) for all purposes of the Indenture;
WHEREAS, the Company now wishes to issue Notes in an initial aggregate principal amount of $900,000,000; and
WHEREAS, the Company hereby directs the Trustee to execute and deliver this Supplemental Indenture; all requirements necessary to make (i) this
Supplemental Indenture a valid instrument in accordance with its terms and (ii) the Notes, when executed by the Company and authenticated and delivered by the Trustee, the valid obligations of the Company, have been performed; and the execution and
delivery of this Supplemental Indenture has been duly authorized in all respects;
NOW THEREFORE, in consideration of the purchase and acceptance of the Notes by the Holders thereof, and for the purpose of setting forth, as
provided in the Base Indenture, the form and substance of the Notes and the terms, provisions and conditions thereof, the Company covenants and agrees with the Trustee as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Rules of Construction. Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned to it in accordance with GAAP;
(c) “or” is not exclusive;
(d) words in the singular include the plural, and in the plural include the singular;
(e) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to the Indenture as a whole and not to any particular Article, Section or other
subdivision;
(f) all references to Sections or Articles or Exhibits refer to Sections or Articles or Exhibits of or to the Indenture unless otherwise indicated;
(g) “including” means including without limitation;
(h) “will” shall be interpreted to express a command; and
(i) provisions apply to successive events and transactions; and references to sections of or rules under the Securities Act, the Exchange Act and the TIA shall be deemed
to include substitute, replacement and successor sections or rules adopted by the SEC from time to time.
Section 1.02. Definition of Terms. Unless the context otherwise requires:
(a) a term defined in the Indenture has the same meaning when used in this Supplemental Indenture unless the definition of such term is amended and supplemented pursuant
to this Supplemental Indenture, in which case the definition in this Supplemental Indenture shall govern solely with respect to the Notes;
(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout;
(c) the singular includes the plural and vice versa;
(d) a reference to a Section or Article is to a Section or Article in this Supplemental Indenture;
(e) headings are for convenience of reference only and do not affect interpretation; and
(f) the following terms have the meanings given to them in this Section 1.02(f):
“Additional Notes” has the meaning set forth in Section 2.03(b).
“Applicable Procedures” means, with respect to any transfer, exchange, payment, redemption offer, or
communication delivered of or for beneficial interests in any Global Note, the rules and procedures of the Depositary that apply to such transfer, exchange, payment, redemption offer, or communication delivered.
“Base Indenture” has the meaning set forth in the preamble hereto.
“Board of Directors” of any Person means the Board of Directors of such Person, or comparable governing
body, or any committee thereof duly authorized to act on behalf of such Board of Directors.
“Business Day” means any day other than a Saturday, a Sunday or a day on which banking institutions in The
City of New York, in the city where the Corporate Trust Office is located, or at a place of payment are authorized by law, regulation or executive order to remain closed. If a payment date is not a Business Day at a place of payment, payment may be
made at that place on the next succeeding day that is a Business Day, and no interest shall accrue for the intervening period.
“Consolidated Net Tangible Assets” means the total amount of assets (less depreciation and valuation
reserves and other reserves and items deductible from the gross book value of specific asset amounts under generally accepted accounting principles) which under generally accepted accounting principles would be included on a balance sheet of the
Company and its Subsidiaries, after deducting therefrom (i) all liability items except indebtedness (whether incurred, assumed or guaranteed) for borrowed money maturing by its terms more than one year from the date of creation thereof or which is
extendible or renewable at the sole option of the obligor in such manner that it may become payable more than one year from the date of creation thereof, shareholder’s equity and reserves for deferred income taxes and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like intangibles, which in each case would be so included on such balance sheet.
“Company” has the meaning set forth in the preamble hereto.
“Default” means any event which is, or after notice or passage of time or both would be, an Event of
Default.
“Government Obligations,” with respect to any Note, means (i) direct obligations of the United States of
America where the timely payment or payments thereunder are supported by the full faith and credit of the United States of America or (ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America where the timely payment or payments thereunder are unconditionally guaranteed as a full faith and credit obligation by the United States of America, and which, in the case of (i) or (ii), are not callable or redeemable at the
option of the issuer or issuers thereof, and shall also include a depository receipt issued by a bank or trust company as custodian with respect to any such Government Obligation or a specific payment of interest on or principal of or other amount
with respect to any such Government Obligation held by such custodian for the account of the holder of a depository receipt; provided, however that (except as required by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of or other amount with respect to the Government Obligation
evidenced by such depository receipt.
“Indebtedness” means all obligations which in accordance with generally accepted accounting principles
would be classified upon a balance sheet as liabilities, including, without limitation, by the enumeration thereof, obligations arising through direct or indirect guarantees (including agreements, contingent or otherwise, to purchase Indebtedness
or to purchase property or services for the primary purpose of enabling the payment of Indebtedness or assuring the owner of Indebtedness against loss) or through agreements, contingent or otherwise, to supply or advance funds for the payment or
purchase of Indebtedness of others; provided, however, that in determining Indebtedness of any Person, there shall not be included rental obligations under any lease of such Person, whether or not such rental obligations would, under generally
accepted accounting principles, be required to be shown on the balance sheet of such Person as a liability item.
“Initial Notes” has the meaning assigned to it in the preamble to this Supplemental Indenture.
“Issue Date” means November 4, 2024, the date of original issuance of Notes.
“Maturity,” when used with respect to any Note, means the date on which the principal of such Note becomes
due and payable as provided in the Notes and the Indenture, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise, and includes any Redemption Date.
“Mortgage” means any mortgage, pledge, lien, security interest, conditional sale or other title retention
agreement or other similar encumbrance.
“Notes” means the Initial Notes and more particularly means any Note authenticated and delivered under the
Indenture. The Initial Notes and the Additional Notes shall be treated as a single class for all purposes under the Indenture and will vote on all matters as one class, and unless the context otherwise requires, all references to the Notes shall
include the Initial Notes and any Additional Notes.
“Person” means any individual, corporation, limited liability company, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Redemption Date” means, with respect to any Note to be redeemed, the date fixed for such redemption by or
pursuant to the Indenture.
“Redemption Price” means the amount payable for the redemption of any Note on a Redemption Date, exclusive
of accrued and unpaid interest thereon to the Redemption Date.
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or any
premium or interest thereon, means the fixed date on which the principal of such Note or such installment of principal or premium or interest is due and payable.
“Subsidiary” means any corporation of which at the time of determination the Company and/or one or more
Subsidiaries owns or controls directly or indirectly more than 50% of the total voting power of shares of stock or other equity interests having general voting power under ordinary circumstances (without regard to the occurrence of any contingency)
and entitled to vote in the election of directors, managers or trustees of such corporation.
“Supplemental Indenture” has the meaning set forth in the preamble hereto.
“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption Date of
United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to November 15, 2028; provided, however, that if the period from the Redemption Date
to November 15, 2028 of such Notes is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
“Trustee” has the meaning set forth in the preamble hereto.
“Wholly-owned,” when used with reference to a Subsidiary, means a Subsidiary of which all of the
outstanding capital stock (except directors’ qualifying shares) is owned by the Company and/or one or more wholly-owned Subsidiaries.
ARTICLE 2
TERMS AND CONDITIONS OF THE NOTES
Section 2.01. Designation and Principal Amount. There is hereby authorized a Designated Series of Securities designated the “6.625% Senior Notes
due 2029” initially offered in the aggregate principal amount of $900,000,000, which amount shall be as set forth in a Company Order for the authentication and delivery of such Notes pursuant to Section 3.03 of the Base Indenture. The aggregate
principal amount of Notes that may be authenticated and delivered under the Indenture is unlimited. Upon the execution of this Supplemental Indenture, or from time to time thereafter, Notes may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and deliver Notes upon receipt of a Company Order, such order signed by an Officer of the Company, without any further action by the Company hereunder. The Trustee shall
authenticate Additional Notes from time to time for original issue in aggregate principal amounts specified by the Company upon delivery by the Company of such Additional Notes together with a Company Order for the authentication and delivery of
such Additional Notes.
Section 2.02. Execution, Authentication, Delivery and Dating. With respect to the Notes, Section 3.03(a) of the Base Indenture shall be replaced in its entirety as follows: “The Securities shall be
executed in the name and on behalf of the Company by the manual, electronic or facsimile signature of its Chairman of the Board of Directors, its Chief Executive Officer, its Chief Financial Officer, its Chief Accounting Officer, its President,
one of its Executive Vice Presidents, Senior Vice Presidents or Vice Presidents, its Controller or its Treasurer. If the Person whose signature is on a Security no longer holds that office at the time the Security is authenticated and delivered,
the Security shall nevertheless be valid.”
Section 2.03. Original Issue of Notes; Further Issuances.
(a) Notes having an aggregate principal amount of $900,000,000 may, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee
for authentication, and the Trustee shall thereupon authenticate and deliver said Notes upon receipt of a Company Order, without any further action by the Company, except as otherwise required by the Indenture. The terms and provisions contained
in the Notes shall constitute, and are hereby expressly made, a part of the Indenture and the Company, OMH and the Trustee, by their execution and delivery of the Indenture, expressly agree to such terms and provisions and to be bound thereby.
Each Holder of (and Holder of beneficial interests in) any Note, by benefiting from such Note, agrees to be bound by the terms and conditions of the Indenture. To the extent any provision of any Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling.
(b) The Company may, without notice to or the consent of the Holders of the Notes, issue additional Notes having identical terms and conditions as the Initial Notes, other
than with respect to the date of issuance, issue price and first Interest Payment Date, in an unlimited aggregate principal amount (the “Additional Notes”). Any such Additional Notes will be part of the
same series as the Initial Notes and will be treated as one class with such Initial Notes, including, without limitation, for purposes of voting and redemptions; provided, that if any such Additional Notes are not fungible with the Initial Notes
for U.S. federal income tax purposes, such Additional Notes shall have a separate CUSIP number.
Section 2.04. Maturity. The Notes will mature on May 15, 2029.
Section 2.05. Interest. The Notes will bear interest at the rate of 6.625% per annum from the most recent Interest Payment Date to which interest
has been paid or duly provided for or, if no interest has been paid, from the Issue Date until the principal thereof becomes due and payable, payable semi-annually in arrears on May 15 and November 15 of each year (each, an “Interest Payment Date”), commencing on May 15, 2025, to the Person in whose name such Note or any Predecessor Security is registered, at the close of business on the Record Date for such interest installment,
which shall be the close of business on the May 1 or November 1 (whether or not a Business Day), as the case may be, immediately preceding such Interest Payment Date, and at the foregoing respective rates on overdue principal.
Section 2.06. Place of Payment. The Place of Payment where Notes may be presented or surrendered for payment, where Notes may be surrendered for registration of transfer or exchange initially is
the Corporate Trust Office of the Trustee.
Section 2.07. Form; Denomination.
(a) The Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the form of Exhibit A hereto.
(b) The 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 and attached as Exhibit A hereto (each, a “Global Note” and collectively, the “Global Notes”), deposited with the Trustee, as custodian for the Depositary,
duly executed by the Company and authenticated by the Trustee as herein provided.
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
Trustee, as custodian for the Depositary or its nominee, as provided in Section 3.03 of the Base Indenture.
(c) The Notes shall be issuable only in registered form, without coupons, in minimum denominations of $2,000 and integral multiples of $1,000 in excess thereof. The Notes
shall be numbered, lettered, or otherwise distinguished in such manner or in accordance with such plans as the officers of the Company executing the same may determine.
Section 2.08. Depositary. The Depository Trust Company shall be the initial Depositary, until a successor shall have been appointed and become such pursuant to the
applicable provisions of this Supplemental Indenture, and thereafter, “Depositary” shall mean or include such successor.
ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.01. Optional Redemption.
The Notes may be redeemed, in whole or in part, at the option of the Company pursuant to Section 3.02 hereof. Other than as specifically provided
in this Article 3, any redemption pursuant to this Article 3 will be made pursuant to the provisions of Article IV of the Base Indenture.
Section 3.02. Optional Redemption by the Company.
Except as set forth in the next two succeeding paragraphs, the Notes are not subject to redemption prior to the Stated Maturity, and there is no
sinking fund for the Notes.
On and after November 15, 2028 (six months prior to the Stated Maturity of the Notes), the Company may redeem, at its option, all or, from time to
time, part of the Notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy to the Trustee), at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the Notes,
if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
In addition, prior to November 15, 2028 (six months prior to the Stated Maturity of the Notes), the Company may redeem, at its option, all or, from
time to time, part of the Notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy to the Trustee), at a Redemption Price equal to (expressed as a percentage of principal amount and rounded to three decimal places) the greater
of:
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(1) |
(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on November 15, 2028) on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the Redemption Date, and
|
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(2) |
100% of the principal amount of the Notes to be redeemed,
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plus, in either case, accrued and unpaid interest thereon to, but excluding, the Redemption Date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment Date).
Section 3.03. Notice of Redemption.
In connection with any redemption of Notes described in this Article 3, at the Company’s request, the Trustee shall give the notice of redemption
in the Company’s name and at the Company’s expense; provided that the Company shall have delivered to the Trustee, at least three Business Days before notice of redemption is required to be given or caused to be given to Holders pursuant to Section
4 of the Base Indenture, an Officer’s Certificate from the Company requesting that the Trustee give such notice and setting forth the information to be stated in such notice as provided in the Base Indenture.
Any such redemption and/or notice of redemption may, at the Company’s discretion, be subject to the satisfaction or waiver of one or more
conditions precedent, including completion of an equity offering or other corporate transaction. In addition, if such redemption or notice is subject to the satisfaction or waiver of one or more conditions precedent, such notice shall state that,
in the Company’s discretion, the redemption date may be delayed until such time as any or all such conditions shall be satisfied or waived, or such redemption may not occur and such notice may be rescinded in the event that any or all such
conditions shall not have been satisfied or waived by the redemption date, or by the redemption date so delayed.
ARTICLE 4
COVENANTS
Section 4.01. Covenants. With respect to the Notes, Article VI of the Base Indenture shall be replaced in its entirety with the following:
ARTICLE VI
PARTICULAR COVENANTS OF THE COMPANY
The Company hereby covenants and agrees as follows:
Section 6.01. Payments of Notes.
The Company shall promptly pay or cause to be paid the principal or the Redemption Price of, and interest, if any, on, the Notes on the dates, in
the amounts and in the manner provided in the Notes and in the Indenture. Principal or the Redemption Price and interest, if any, shall be considered paid on the date due if on such date the Trustee or the Paying Agent holds in accordance with the
Indenture no later than 10:00 a.m., New York City time, money sufficient to pay all principal or Redemption Price and interest, if any, then due.
Interest on the Notes will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from and including
the Issue Date to but excluding the date of payment.
The Company shall pay interest (including post-petition interest in any proceeding under Bankruptcy Law) on overdue principal or the Redemption
Price at the rate specified therefor in the Notes, and it shall pay interest (including post-petition interest in any proceeding under Bankruptcy Law) on overdue installments of interest at the same rate to the extent lawful.
Section 6.02. Paying Agent.
(a) The Company will maintain in each Place of Payment for the Notes, if any, an office or agency where Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange (the “Paying Agent”). The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations and surrenders may be made at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as Paying Agent to receive all presentations and surrenders.
(b) The Company may also from time to time designate different or additional offices or agencies where the Notes may be presented or surrendered for any or all such
purposes (in or outside of such Place of Payment), and may from time to time rescind any such designations; provided, however, that no such designation or rescission shall in any manner relieve the Company of its obligations
described in the preceding paragraph. The Company will give prompt written notice to the Trustee of any such additional designation or rescission of designation and of any change in the location of any such different or additional office or
agency. The Company shall enter into an appropriate agency agreement with any Paying Agent not a party to the Indenture. The agreement shall implement the provisions of the Indenture that relate to such agent. The Company shall notify the Trustee
of the name and address of each such agent. The Company or any Affiliate thereof may act as Paying Agent.
Section 6.03. To Hold Payment in Trust.
(a) If the Company or an Affiliate thereof shall at any time act as Paying Agent with respect to any Notes, then, on or before the date on which the principal of and
premium, if any, or interest on the Notes by their terms or as a result of the calling thereof for redemption shall become payable, the Company or such Affiliate will segregate and hold in trust for the benefit of the Holders of the Notes or the
Trustee a sum sufficient to pay such principal and premium, if any, or interest which shall have so become payable until such sums shall be paid to such Holders or otherwise disposed of as herein provided, and will notify the Trustee of its
action or failure to act in that regard. Upon any proceeding under any federal bankruptcy laws with respect to the Company or any Affiliate thereof, if the Company or such Affiliate is then acting as Paying Agent, the Trustee shall replace the
Company or such Affiliate as Paying Agent.
(b) If the Company shall appoint, and at the time have, a Paying Agent for the payment of the principal of and premium, if any, or interest any the Notes, then prior to
10:00 a.m., New York City time, on the date on which the principal of and premium, if any, or interest on the Notes shall become payable as aforesaid, whether by their terms or as a result of the calling thereof for redemption, the Company will
deposit with such Paying Agent a sum sufficient to pay such principal and premium, if any, or interest so becoming due, such sum to be held in trust for the benefit of the Holders entitled to such principal, premium, if any, or interest, and
(unless such Paying Agent is the Trustee), the Company or any other obligor of the Notes will promptly notify the Trustee of such action or any failure to so act.
(c) If the Paying Agent shall be other than the Trustee, the Company will cause such Paying Agent to execute and deliver to the Trustee an instrument in which such Paying
Agent shall agree with the Trustee, subject to the provisions of this Section 6.03, that such Paying Agent shall:
(i) hold all sums held by it for the payment of the principal of and premium, if any, or interest on the Notes in trust for the benefit of the Holders entitled thereto
until such sums shall be paid to such Holders or otherwise disposed of as herein provided;
(ii) give to the Trustee notice of any Default by the Company or any other obligor upon the Notes in the making of any payment of the principal of and premium, if any, or
interest on the Notes;
(iii) at any time during the continuance of any such Default, upon the written request of the Trustee, pay to the Trustee all sums so held in trust by such Paying Agent; and
(iv) acknowledge, accept and agree to comply in all aspects with the provisions of the Indenture relating to the duties, rights and liabilities of such Paying Agent.
(d) Anything in this Section 6.03 to the contrary notwithstanding, the Company may at any time, for the purpose of obtaining a release, satisfaction or discharge of the
Indenture or for any other reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or by any Paying Agent other than the Trustee as required by this Section 6.03, such sums to be held by the Trustee upon the same
trusts as those upon which such sums were held by the Company or such Paying Agent.
(e) Subject to applicable abandoned property law, any money deposited with the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the
principal of and premium, if any, or interest on any Notes and remaining unclaimed for two years after such principal and premium, if any, or interest has become due and payable shall be paid to the Company upon Company Order along with interest
(if any) that has accumulated thereon as a result of such money being invested at the direction of the Company, or (if then held by the Company) shall be discharged from such trust, and the Holder of such Note shall thereafter, as an unsecured
general creditor, look only to the Company for payment of such amounts without interest thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent before being required to make any such repayment, may at the expense of the Company cause to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in The City of New York, notice that such money remains unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 6.04. Corporate Existence. Subject to Article VII, the Company will do or cause to be done all things necessary to
preserve and keep in full force and effect the corporate existence, rights (charter and statutory), licenses and franchises of the Company; provided, however, that the Company will not be required to preserve any such existence, right, license or
franchise if the Board of Directors shall determine that the preservation thereof is no longer desirable in the conduct of the business of the Company and that the loss thereof is not adverse in any material respect to the Holders.
Section 6.05. Compliance Certificate.
(a) The Company shall deliver to the Trustee, within 120 days after the end of each fiscal year of the Company, a written statement, which need not comply with Section
18.01, signed by the principal executive officer, principal financial officer or principal accounting officer of the Company, as to his or her knowledge of the Company’s compliance with all conditions and covenants under the Indenture. For
purposes of this Section 6.05, such compliance shall be determined without regard to any period of grace or requirement of notice under the Indenture.
(b) The Company shall deliver to the Trustee, within ten days after the occurrence thereof written notice of any event which would constitute a Default.
Section 6.06. SEC Reports.
(a) The Company, to the extent required pursuant to Section 314(a) of the TIA, shall file with the Trustee, within fifteen days after the Company is required to file the
same with the SEC, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) which the Company may be
required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act, or, if the Company is not required to file information, documents or reports pursuant to either of such Sections, then to file with the Trustee and the
SEC, in accordance with the rules and regulations prescribed from time to time by the SEC, such of the supplementary and periodic information, documents and reports which would be required pursuant to Section 13 of the Exchange Act in respect of
a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations.
(b) The Company, to the extent required pursuant to Section 314(a) of the TIA, shall file with the Trustee and the SEC, in accordance with the rules and regulations
prescribed from time to time by the SEC, such additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided for in the Indenture as may be required from time to time by such
rules and regulations.
(c) The Company, to the extent required pursuant to Section 314(a) of the TIA, shall transmit to the Holders of the Notes within 30 days after the filing thereof with the
Trustee, in the manner and to the extent provided in Section 313(c) of the TIA, such summaries of any information, documents and reports required to be filed by the Company pursuant to the two immediately preceding sentences as may be required by
rules and regulations prescribed from time to time by the SEC.
(d) The Company shall notify the Trustee when and as the Notes become admitted to trading on any national securities exchange.
(e) Delivery of such reports, information and documents to the Trustee pursuant to this Section 6.06 is for informational purposes only, and the Trustee’s receipt thereof
shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture (as to which the Trustee is
entitled to receive and conclusively rely on Officers’ Certificates).
Section 6.07. Limitation on Liens.
(a) The Company shall not at any time, directly or indirectly, create or assume, and shall not cause or permit any Subsidiary to create or assume, any Mortgage of or upon
any of its or their properties or assets, real or personal, whether owned at the Issue Date or thereafter acquired, or of or upon any income or profit therefrom, without making effective provision, and the Company covenants that in any such case
the Company will make or cause to be made effective provision, whereby the Notes shall be secured by such Mortgage equally and ratably with or prior to any and all other obligations and indebtedness to be secured thereby, so long as any such
other obligations and indebtedness shall be so secured.
(b) Nothing in this Section 6.07 shall be construed to prevent the Company or any Subsidiary from creating or assuming, and the Company or any Subsidiary is hereby
expressly permitted to create or assume, without securing the Notes as hereinabove provided, any Mortgage of the following character:
(1) any Mortgage on any properties or assets of the Company or any Subsidiary existing on the Issue Date;
(2) any Mortgage on any properties or assets of the Company or any Subsidiary, in addition to those otherwise permitted by this subsection (b) of this Section 6.07,
securing Indebtedness of the Company or any Subsidiary and refundings or extensions of any such Mortgage and the Indebtedness secured thereby for amounts not exceeding the principal amount of the Indebtedness so refunded or extended at the time
of the refunding or extension thereof and covering only the same property theretofore securing the same; provided that at the time such Indebtedness was initially incurred, the aggregate amount of secured Indebtedness permitted by this paragraph
(2), after giving effect to such incurrence, does not exceed 10% of Consolidated Net Tangible Assets;
(3) any Mortgage on any property or assets of any Subsidiary to secure Indebtedness owing by it to the Company or to a Wholly-owned Subsidiary;
(4) any Mortgage on any property or assets of any Subsidiary to secure, in the ordinary course of business, its Indebtedness, if as a matter of practice, prior to the time
it became a Subsidiary, it had borrowed on the basis of secured loans or had customarily deposited collateral to secure any or all of its obligations;
(5) any purchase money Mortgage on property, real or personal, acquired or constructed by the Company or any Subsidiary after the Issue Date, to secure the purchase price
of such property (or to secure Indebtedness incurred for the purpose of financing the acquisition or construction of any such property to be subject to such Mortgage), or Mortgages existing on any such property at the time of acquisition, whether
or not assumed, or any Mortgage existing on any property of any corporation at the time it becomes a Subsidiary, or any Mortgage with respect to any property hereafter acquired; provided, however, that the aggregate principal amount of the
Indebtedness secured by all such Mortgages on a particular parcel of property shall not exceed 75% of the cost of such property, including the improvements thereon, to the Company or any such Subsidiary; and provided, further, that any such
Mortgage does not spread to other property owned prior to such acquisition or construction or to property thereafter acquired or constructed other than additions to such property;
(6) refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements) of any Mortgage permitted by
this subsection (b) of this Section 6.07 (other than pursuant to paragraph (2) hereof) for amounts not exceeding (A) the principal amount of the Indebtedness so refinanced, refunded, extended, renewed or replaced at the time of the refunding or
extension thereof, and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement, and covering only the same property theretofore securing the same;
(7) deposits, liens or pledges to enable the Company or any Subsidiary to exercise any privilege or license, or to secure payments of workmen’s compensation, unemployment
insurance, old age pensions or other social security, or to secure the performance of bids, tenders, contracts or leases to which the Company or any Subsidiary is a party, or to secure public or statutory obligations of the Company or any
Subsidiary, or to secure surety, stay or appeal bonds to which the Company or any Subsidiary is a party; or other similar deposits, liens or pledges made in the ordinary course of business;
(8) mechanics’, workmen’s, repairmen’s, materialmen’s, or carriers’ liens; or other similar liens arising in the ordinary course of business; or deposits or pledges to
obtain the release of any such liens;
(9) liens arising out of judgments or awards against the Company or any Subsidiary with respect to which the Company or such Subsidiary shall in good faith be prosecuting
an appeal or proceedings for review; or liens incurred by the Company or any Subsidiary for the purpose of obtaining a stay or discharge in the course of any legal proceeding to which the Company or such Subsidiary is a party;
(10) liens for taxes not yet subject to penalties for non-payment or contested, or minor survey exceptions, or minor encumbrances, easements or reservations of, or rights
of others for, 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 properties, which encumbrances, easements, reservations, rights and restrictions
do not in the aggregate materially detract from the value of said properties or materially impair their use in the operation of the business of the Company or of the Subsidiary owning the same;
(11) other liens, charges and encumbrances incidental to the conduct of its business or the ownership of its property and assets which were not incurred in connection with
the borrowing of money or the obtaining of advances or credit, and which do not in the aggregate materially detract from the value of its property and assets or materially impair the use thereof in the operation of its business; and
(12) any Mortgage created by the Company or any Subsidiary in connection with a transaction intended by the Company or such Subsidiary to be one or more sales of properties
or assets of the Company or such Subsidiary; provided that such Mortgage shall only apply to the properties or assets involved in such sale or sales, the income from such properties or assets and/or the proceeds of such properties or assets.
(c) If at any time the Company or any Subsidiary shall create or assume any Mortgage not permitted by subsection (b) of this Section 6.07, to which the covenant in
subsection (a) of this Section 6.07 is applicable, the Company shall promptly deliver to the Trustee (1) an Officer’s Certificate stating that the covenant contained in subsection (a) of this Section 6.07 has been complied with, and (2) an
Opinion of Counsel to the effect that the covenant contained in subsection (a) of this Section 6.07 has been complied with, and that any instruments executed by the Company in the performance of such covenant comply with the requirements of such
Section.
(d) In the event that the Company shall hereafter secure the Notes equally and ratably with (or prior to) any other obligation or indebtedness pursuant to the provisions
of this Section 6.07, the Trustee is hereby authorized and instructed to enter into an indenture or agreement supplemental hereto and to take such other actions, if any, as the Company may deem advisable to enable the Trustee to enforce
effectively the rights of the Holders of the Notes so secured equally and ratably with (or prior to) such other obligation or indebtedness.
Section 6.08. Conditional Waiver by Holders of Notes. Anything in the Indenture to the contrary notwithstanding, the Company
may fail or omit in any particular instance to comply with a covenant or condition set forth herein with respect to the Notes if the Company shall have obtained and filed with the Trustee, prior to the time of such failure or omission, evidence
(as provided in Article IX) of the consent of the Holders of a majority in aggregate principal amount of the Notes at the time Outstanding, either waiving such compliance in such instance or generally waiving compliance with such covenant or
condition, but no such waiver shall extend to or affect such covenant or condition except to the extent so expressly waived, or impair any right consequent thereon and, until such waiver shall have become effective, the obligations of the Company
and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE 5
NO SINKING FUNDS
Section 5.01. No Sinking Funds. The provisions of Article V of the Base Indenture shall not be applicable to the Notes.
ARTICLE 6
EVENTS OF DEFAULT
Section 6.01. Events of Default. With respect to the Notes, Section 8.01 of the Base Indenture shall be replaced in its entirety with the following:
Section 8.01. Events of Default.
An “Event of Default” wherever used herein, means any one of the following events:
(a) a default in the payment of any interest payable in respect of any Note, when such interest becomes due and payable, and continuance of such default for a period of 30
days;
(b) a default in the payment of the principal of and any premium on any Note when it becomes due and payable at its Maturity;
(c) a default in the performance, or breach, of any covenant or warranty of the Company in the Indenture or the Notes, and continuance of such default or breach for a
period of 90 days;
(d) an event of default, as defined in any mortgage, indenture or instrument under which there may be issued, or by which there may be secured or evidenced, any
Indebtedness for money borrowed of the Company, whether such Indebtedness now exists or shall hereafter be created, shall happen and shall result in a principal amount in excess of $25,000,000 of Indebtedness becoming or being declared due and
payable prior to the date on which it would otherwise have become due and payable, and such acceleration shall not have been rescinded or annulled, or such Indebtedness shall not have been discharged, within a period of 15 days;
(e) a court having jurisdiction in the premises shall have entered a decree or order for relief in respect of the Company in an involuntary proceeding under any Bankruptcy
Law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or other similar official) of the Company or of all or any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and such
decree or order shall remain unstayed and in effect for a period of 60 consecutive days; and
(f) the Company shall have commenced a voluntary proceeding under any Bankruptcy Law, or shall have, consented to the entry, of an order for, relief in an involuntary case
under any such law, or shall have consented to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Company, or of all or any substantial part of its
property, or shall have made an assignment for the benefit of creditors.
A Default under clause (c) or (d) is not an Event of Default until the Trustee or the Holders of at least 25% in aggregate principal amount of the
Outstanding Notes notify the Company in writing of the Default, and the Company does not cure the Default within the time specified in such clause after receipt of such notice.
When a Default under clause (c) or (d) is cured or remedied within the specified period, it ceases to exist.
The foregoing will constitute Events of Default whatever the reason for any such Event of Default and whether it is voluntary or involuntary or is
effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body.
ARTICLE 7
CONCERNING THE TRUSTEE
Section 7.01. Series Trustee Designation. The Company hereby designates and appoints HSBC Bank USA, National Association, and, subject
to the applicable provisions of the Indenture, any successor Trustee, to serve as Trustee with respect to the Notes. The Notes shall constitute a Designated Series for all purposes of the Indenture.
Section 7.02. Rights of the Series Trustee. With respect to the Notes, Section 12.01(d) of the Base Indenture shall be replaced in its
entirety with the following:
“The Trustee may consult with counsel and other professional advisors of its selection, and any advice or opinion of such counsel or other professional advisor shall
be full and complete authorization and protection in respect of any action taken or suffered by the Trustee hereunder in good faith and in reliance thereon.”
ARTICLE 8
DEFEASANCE; SATISFACTION AND DISCHARGE
Section 8.01. Defeasance. Legal defeasance of the Notes under Section 13.02 of the Base Indenture and covenant defeasance of the Notes under Section 13.03 of the
Base Indenture shall be applicable to the Notes, and the Company may at its option, at any time, with respect to the Notes, elect to have Section 13.02 or Section 13.03 of the Base Indenture be applied to the Outstanding Notes upon compliance
with the conditions set forth in Section 13.04 of the Base Indenture. In addition to Section 7.01 of the Base Indenture, Article 4 of this Supplemental Indenture shall be subject to covenant defeasance under Section 13.03 of the Base Indenture.
Section 8.02. Conditions to Legal or Covenant Defeasance. With respect to the Notes, Section 13.04 of the Base Indenture shall be replaced in its entirety with the following:
Section 13.04 Conditions to Legal or Covenant Defeasance. The following are the
conditions precedent to the application of either Section 13.02 or 13.03 hereof to the Outstanding Securities of a series:
In order to exercise either Legal Defeasance or Covenant Defeasance with respect to the Outstanding Securities of a series:
(a) the Company must irrevocably deposit with the Trustee, in trust (the “Defeasance Trust”), for the benefit of the Holders of the Outstanding Securities of such series,
cash in U.S. dollars, U.S. Government Obligations, or a combination thereof, in such amounts as shall be sufficient to pay the principal of, premium, if any, and interest due on the Outstanding Securities of such series on Stated Maturity or on
the applicable Redemption Date, as the case may be, of such principal, premium, if any, or interest on such Securities of such series, and the Company must specify whether such Notes are being defeased to Stated Maturity or to a particular
Redemption Date;
(b) in the case of Legal Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and
exclusions,
(i) the Company has received from, or there has been published by, the United States Internal Revenue Service a ruling, or
(ii) since the issuance of the Securities of such series, there has been a change in the applicable U.S. federal income tax law,
in either case to the effect that, and based thereon such Opinion of Counsel shall confirm that, subject to customary assumptions
and exclusions, the beneficial owners of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes, as applicable, as a result of such Legal Defeasance and will be subject to U.S. federal income tax
on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; provided, however, the Opinion of Counsel required with respect to a Legal Defeasance need not be
delivered if all Securities of such series not theretofore delivered to the Trustee for cancellation (x) have become due and payable or (y) will become due and payable at their Stated Maturity within one year or are to be called for redemption
within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company;
(c) in the case of Covenant Defeasance, the Company shall have delivered to the Trustee an Opinion of Counsel confirming that, subject to customary assumptions and
exclusions, the beneficial owners of the Securities of such series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such Covenant Defeasance and will be subject to U.S. federal income tax on the same
amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; and
(d) the Company shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel (which Opinion of Counsel may be subject to customary assumptions
and exclusions), each stating (i) that all conditions precedent provided for or relating to the Legal Defeasance or the Covenant Defeasance, as the case may be, have been complied with and (ii) that such Legal Defeasance or Covenant Defeasance,
as the case may be, is authorized and permitted pursuant to the terms and conditions of the Indenture.
Section 8.03. Satisfaction and Discharge. Satisfaction and discharge of the Indenture under Section 13.09 of the Base Indenture shall be applicable to the Notes.
ARTICLE 9
MODIFICATION AND WAIVER
Section 9.01. Modification and Waiver.With respect to the Notes, Section 15.01 of the Base Indenture shall be replaced in its entirety with the following:
Section 15.01 Without Consent of Holders of Notes. Notwithstanding Section 15.02 of the
Indenture, the Company and the Trustee may modify or amend the Indenture or the Notes without the consent of any Holder of a Note:
(a) to evidence that another entity is our successor and has assumed our obligations with respect to the Notes;
(b) to add to our covenants or to add guarantees of any Person for the benefit of the Holders of the Notes or to surrender any of our rights or powers under the Indenture;
(c) to add any Events of Default;
(d) to change or eliminate any restrictions on the payment of the principal of, or any premium or interest on, any Notes, to modify the provisions relating to Global
Notes, or to permit the issuance of Notes in uncertificated form, so long as in any such case the interests of the Holders of Notes are not adversely affected in any material respect;
(e) to secure the Notes;
(f) to provide for the appointment of a successor Trustee with respect to the Notes;
(g) to provide for the discharge of the Indenture with respect to the Notes by the deposit in trust of money, Government Obligations or a combination thereof, in
accordance with the provisions of Article XIII;
(h) to make certain changes to the Indenture to provide for the issuance of Additional Notes;
(i) to cure any ambiguity, defect or inconsistency in the Indenture or to make any other provisions with respect to matters or questions arising under the Indenture, so
long as the action does not adversely affect the interests of the Holders of the Notes in any material respect; or
(j) to conform the text of the Indenture or the Notes to any provision of the “Description of the Notes” in the Company’s prospectus supplement dated October 31, 2024.
ARTICLE 10
GUARANTEES
Section 10.01. Guarantees. The provisions of Article XVII of the Base Indenture shall be applicable to the Notes. The Notes shall be guaranteed by OMH as provided
in the Base Indenture.
ARTICLE 11
MISCELLANEOUS
Section 11.01. Section Provisions of Base Indenture Not Applicable. Notwithstanding anything to the contrary in the Indenture, Article V and Article XVI of the Base
Indenture shall not apply with respect to the Notes.
Section 11.02. Ratification of Indenture. The Base Indenture, as supplemented by this Supplemental Indenture, is in all respects ratified and confirmed, and this
Supplemental Indenture shall be deemed part of the Indenture in the manner and to the extent herein and therein provided.
Section 11.03. Effects of Headings and Table of Contents. The Article and Section headings herein and the Table of Contents are for convenience only and shall not
affect the construction hereof.
Section 11.04. GOVERNING LAW; WAIVER OF TRIAL BY JURY. THIS SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE DEEMED TO BE CONTRACTS MADE UNDER THE LAW OF THE STATE
OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF SAID STATE.
EACH PARTY HERETO, AND EACH HOLDER OF A SECURITY BY ACCEPTANCE THEREOF, HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS SUPPLEMENTAL INDENTURE.
THE PARTIES HERETO HEREBY (I) IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL OR STATE COURT SITTING IN THE
BOROUGH OF MANHATTAN IN THE CITY OF NEW YORK, (II) WAIVE ANY OBJECTION TO LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN SUCH COURTS, AND (III) WAIVE ANY OBJECTION THAT SUCH COURTS ARE AN INCONVENIENT FORUM OR DO NOT HAVE JURISDICTION OVER ANY
PARTY.
Section 11.05. Counterparts; Originals. This Supplemental Indenture may be executed in counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same instrument. The words “execution,” “signed,” “signature,” and words of like import in this Supplemental Indenture or in any other certificate, agreement or document
related to this Supplemental Indenture shall include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including,
without limitation, DocuSign and AdobeSign). The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means)
shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
Section 11.06. Force Majeure. In no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder
arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts
of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the
banking industry to resume performance as soon as practicable under the circumstances.
Section 11.07. U.S.A. Patriot Act.The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. Patriot Act, the Trustee, like all financial institutions and in
order to help fight the funding of terrorism and money laundering, is required to obtain, verify, and record information that identifies each Person or legal entity that establishes a relationship or opens an account with the Trustee. The parties
to this Supplemental Indenture agree that they will provide the Trustee with such information as it may request in order for the Trustee to satisfy the requirements of the U.S.A. Patriot Act.
Section 11.08. Sanctions.The Company hereby represents and warrants to the Trustee that it will not, directly or knowingly indirectly, use the proceeds hereof, or lend, contribute
or otherwise make available such proceeds to any subsidiary, joint venture partner or other person, (i) for the purpose of funding any activities of or business with any Person that, at the time of such funding, is the subject of sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department, the U.S. Department of Commerce, the U.S. Department of State, the United Nations Security Council, the European Union or any European Union member state, or HM
Treasury (collectively, “Sanctions”), or (ii) in any other manner that will result in a violation of Sanctions.
Section 11.09. Notices to the Company and Trustee. Any notice or demand authorized by this Supplemental Indenture to be made upon, given or furnished to, or filed
with, the Company or the Trustee shall be sufficiently made, given, furnished or filed for all purposes if it shall be given, delivered or transmitted by facsimile to:
(a) the Company, at 601 N.W. Second Street, Evansville, Indiana 47708, Attention: Treasurer, Facsimile No.: (812) 468-5352 or at such other address or facsimile number as
may have been furnished in writing to the Trustee by the Company.
(b) the Trustee, at the Corporate Trust Office of the Trustee, at Issuer Services, 66 Hudson Boulevard East, New York, NY 10001.
Any such notice, demand or other document shall be in the English language.
Section 11.10. Notices to Holders of Notes; Waiver. Any notice required or permitted to be given to Holders of Notes shall be sufficiently given (unless otherwise
herein expressly provided),
(a) if to Holders, if given in writing by first class mail, postage prepaid, to such Holders at their addresses as the same shall appear on the Register of the Company; provided,
that in the event of suspension of regular mail service or by reason of any other cause it shall be impracticable to give notice by mail, then such notification as shall be given with the approval of the Company shall constitute sufficient notice
for every purpose hereunder; or
(b) if a series of Notes has been issued in global form through DTC as Depositary or through another Depositary, notice may be provided in all cases by delivery of such
notice to DTC or such other Depositary, as applicable, pursuant to its then Applicable Procedures or a successor system thereof.
Where this Supplemental Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken
in reliance on such waiver. In any case where notice to Holders is given by mail; neither the failure to mail such notice nor any defect in any notice so given to any particular Holder shall affect the sufficiency of such notice with respect to
other Holders, and any notice that is given in the manner herein provided shall be conclusively presumed to have been duly given. In any case where notice to Holders is given by publication, any defect in any notice so published as to any
particular Holder shall not affect the sufficiency of such notice with respect to other Holders, and any notice that is published in the manner herein provided shall be conclusively presumed to have been duly given.
Section 11.11. Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the parties hereto shall bind their respective successors and
assigns and inure to the benefit of their permitted successors and assigns, whether so expressed or not.
Section 11.12. Separability Clause. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 11.13. Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or to give to, any Person or corporation other than the parties hereto and their successors and the Holders of the Notes any benefit or any right, remedy or claim under or by reason of
this Supplemental Indenture or any covenant, condition, stipulation, promise or agreement hereof, and all covenants, conditions, stipulations, promises and agreements in this Supplemental Indenture contained shall be for the sole and exclusive
benefit of the parties hereto and their successors and of the Holders of the Notes.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed.
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ONEMAIN FINANCE CORPORATION, as the Company
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By:
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/s/ David R. Schulz
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Name:
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David R. Schulz
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Title:
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Senior Vice President and Treasurer
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ONEMAIN HOLDINGS, INC., as Guarantor
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By:
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/s/ David R. Schulz
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Name:
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David R. Schulz
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Title:
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Senior Vice President and Treasurer
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HSBC BANK USA, NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ F. Acebedo
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Name:
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F. Acebedo
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Title:
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Vice President
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Exhibit A
[FORM OF FACE OF SECURITY]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE NOMINEE OF THE DEPOSITARY OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREON IS MADE TO THE NOMINEE OF THE
DEPOSITARY OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, THE NOMINEE OF
THE DEPOSITARY, HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, OR BY
A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY, OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
CUSIP No. 682691 AH3
ISIN No. US682691AH34
OneMain Finance Corporation
6.625% SENIOR NOTES DUE 2029
As revised by the
Schedule of Increases
or Decreases in Global Security
attached hereto
Interest.
OneMain Finance Corporation, an Indiana corporation (herein called the “Company,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises
to pay to ______ or registered assigns, the principal sum of ____ million dollars ($_____), as revised by the Schedule of Increases or Decreases in Global Security attached hereto, on May 15, 2029 and to pay interest thereon from November 4, 2024
or from the most recent Interest Payment Date to which interest has been paid or duly provided for, semi-annually in arrears on May 15 and November 15 of each year, commencing May 15, 2025 at the rate of 6.625% per annum, until the principal
hereof is paid or made available for payment.
Method of Payment. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on the Record Date for such interest, which shall be May 1 or November 1, as the case may be, next preceding such Interest Payment Date. Any such interest not so punctually paid or duly provided for will forthwith cease to
be payable to the Holder on such Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Securities) is registered at the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, notice thereof having been given to Holders of Notes of this series not less than 10 days prior to such Special Record Date, all as more fully provided in said Indenture. Payment of the principal of (and
premium, if any) and any such interest on this Note will be made at the Corporate Trust Office in U.S. Dollars.
Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Authentication. Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
Electronic Signatures. Except as provided in the immediately preceding paragraph, the words “execution,” “signed,” “signature,” and words of like import in this Note or in any other certificate, agreement or document related to this Note shall
include images of manually executed signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The
use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and
enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
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ONEMAIN FINANCE CORPORATION
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By:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
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Date of authentication:
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________
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HSBC BANK U.S.A., NATIONAL
ASSOCIATION, as Trustee
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By:
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Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
Indenture.
This Note is one of a duly authorized issue of securities of the Company (herein called the “Notes”), issued and to be issued in one or more series under an Indenture, dated as of December 3, 2014 (herein
called the “Base Indenture”), among the Company, OneMain Holdings, Inc., as a Guarantor (“OMH,” which term includes any successor Person under the Indenture), and
Wilmington Trust, National Association, as trustee (herein called the “Original Trustee,” which term includes any successor trustee to the Original Trustee under the Indenture), as amended and supplemented
by the Nineteenth Supplemental Indenture, dated November 4, 2024 (together with the Base Indenture, as amended, supplemented, or otherwise modified from time to time, the “Indenture”), among the Company,
OMH, as a Guarantor, and HSBC Bank U.S.A., National Association, as Series Trustee (herein called the “Trustee,” which term includes any successor trustee to the Trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the Notes and of the terms
upon which the Notes are, and are to be, authenticated and delivered. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to $900,000,000. The Initial Notes and Additional Notes shall be
treated as a single class of securities for all purposes under the Indenture and will vote on all matters as a single class under the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as amended. The Notes are subject to all such terms, and Holders are referred to the Indenture and such act for a statement of such terms. The Notes are general obligations of the Company. To the
extent a provision of this Note conflicts with the express provisions of the Indenture, the provisions of the Indenture shall govern and be controlling.
Optional Redemption.
On and after November 15, 2028 (six months prior to the Stated Maturity of the Notes), the Company may redeem, at its option, all or, from time to
time, part of the Notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy to the Trustee), at a Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest on the Notes,
if any, to, but excluding, the applicable Redemption Date (subject to the right of Holders of record on the relevant Record Date to receive interest due on the relevant Interest Payment Date).
In addition, prior to November 15, 2028 (six months prior to the Stated Maturity of the Notes), the Company may redeem, at its option, all or, from
time to time, part of the Notes, upon not less than 10 nor more than 60 days’ prior notice (with a copy to the Trustee), at a Redemption Price equal to (expressed as a percentage of principal amount and rounded to three decimal places) the greater
of:
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(1) |
(a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the Redemption Date (assuming the Notes matured on November 15, 2028) on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) at the Treasury Rate plus 50 basis points less (b) interest accrued to the Redemption Date, and
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(2) |
100% of the principal amount of the Notes to be redeemed,
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plus, in either case, accrued and unpaid interest thereon to, but excluding, the Redemption Date (subject to the right of Holders of record on the
relevant Record Date to receive interest due on the relevant Interest Payment Date).
For purposes of determining the optional redemption price, the following definitions are applicable:
“Stated Maturity,” when used with respect to any Note or any installment of principal thereof or any
premium or interest thereon, means the fixed date on which the principal of such Note or such installment of principal or premium or interest is due and payable.
“Treasury Rate” means, as of any Redemption Date, the yield to maturity as of such Redemption Date of
United States Treasury securities with a constant maturity (as compiled and published in the most recent Federal Reserve Statistical Release H.15 (519) that has become publicly available at least two business days prior to the Redemption Date (or,
if such Statistical Release is no longer published, any publicly available source of similar market data)) most nearly equal to the period from the Redemption Date to November 15, 2028; provided, however, that if the period from the Redemption Date
to November 15, 2028 of such Notes is less than one year, the weekly average yield on actively traded United States Treasury securities adjusted to a constant maturity of one year will be used.
Notice of any redemption will be given at least 10 days but not more than 60 days before the Redemption Date to each registered Holder of the Notes
to be redeemed; provided that redemption notices may be given more than 60 days prior to a Redemption Date if such notice is given in connection with a Legal Defeasance or a Covenant Defeasance or a satisfaction and discharge pursuant to
Article XIII of the Base Indenture. Unless the Company defaults in payment of the Redemption Price, on and after the Redemption Date, interest will cease to accrue on the Notes or portions of the Notes called for redemption. If fewer than all of
the Outstanding Notes are to be redeemed, the Trustee will select, not more than 60 days prior to the Redemption Date, the particular Notes or portions thereof for redemption from the Outstanding Notes not previously called by such method as the
Trustee deems fair and appropriate (or in accordance with Applicable Procedures of the Depositary).
Except as set forth above, the Notes will not be redeemable by the Company prior to Maturity and will not be entitled to the benefit of any sinking
fund.
Defaults and Remedies. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.
Amendment, Supplement, Modification and Waiver. The Indenture and the Notes may be amended, supplemented or modified as provided in the Indenture.
Guarantees.
The Notes shall be guaranteed by OMH as provided in the Indenture.
Denominations, Transfer and Exchange. The Notes are issuable only in registered form without coupons in minimum denominations of $2,000 and in integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to certain limitations
therein set forth, the Notes are exchangeable for a like aggregate principal amount of Notes of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registerable in the Security
Register, upon surrender of this Note for registration of transfer at the Registrar accompanied by a written request for transfer in form satisfactory to the Company and the Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Notes and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Persons Deemed Owners. Prior to due presentment of this Note for registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
Miscellaneous. The Indenture and this Note shall be deemed to be contracts made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
All terms used in this Note and not defined herein shall have the meanings assigned to them in the Indenture.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
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Date of Exchange
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Amount of increase in
Principal Amount of this
Global Security
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Amount of decrease in Principal Amount of this Global Security
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Principal Amount of this
Global Security
following each decrease
or increase
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Signature of authorized
signatory of Trustee
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Exhibit 5.2
Skadden, Arps, Slate, Meagher & Flom llp
ONE MANHATTAN WEST
NEW YORK, NY 10001
________
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TEL: (212) 735-3000
FAX: (212) 735-2000
www.skadden.com
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FIRM/AFFILIATE
OFFICES
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BOSTON
CHICAGO
HOUSTON
LOS ANGELES
PALO ALTO
WASHINGTON, D.C.
WILMINGTON
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BEIJING
BRUSSELS
FRANKFURT
HONG KONG
LONDON
MUNICH
PARIS
SÃO PAULO
SEOUL
SHANGHAI
SINGAPORE
TOKYO
TORONTO
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November 4, 2024
OneMain Holdings, Inc.
OneMain Finance Corporation
601 N.W. Second Street
Evansville, Indiana 47708
RE: OneMain Finance Corporation: Senior Notes Offering
Ladies and Gentlemen:
We have acted as special United States counsel to OneMain Finance Corporation, an Indiana corporation (the “Company”), in connection with
the public offering of $900,000,000 aggregate principal amount of the Company’s 6.625% Senior Notes due 2029 (the “Notes”) to be issued under the Indenture, dated as of December 3, 2014 (the “Base Indenture”), among the Company, OneMain
Holdings, Inc., a Delaware corporation, as guarantor (the “Guarantor”) and Wilmington Trust, National Association, as trustee, as amended and supplemented by the Nineteenth Supplemental Indenture, dated as of November 4, 2024 (the “Nineteenth
Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among the Company, the Guarantor and HSBC Bank USA, National Association, as series trustee (in such capacity, the “Trustee”). The Indenture provides
that the Notes are to be guaranteed by the Guarantor (such Guarantee (as defined below), together with the Notes, the “Securities”).
This opinion is being furnished in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Securities Act of 1933 (the “Securities Act”).
In rendering the opinions stated herein, we have examined and relied upon the following:
(a) the registration statement on Form S-3 (File No. 333-274956) of the Company and the Guarantor relating to debt securities and other securities of the Company and the Guarantor
filed on October 13, 2023 with the Securities and Exchange Commission (the “Commission”) under the Securities Act allowing for delayed offerings pursuant to Rule 415 of the General Rules and Regulations under the Securities Act (the “Rules
and Regulations”), including the information deemed to be a part of the registration statement pursuant to Rule 430B of the Rules and Regulations (such registration statement being hereinafter referred to as the “Registration Statement”);
(b) the prospectus, dated October 13, 2023 (the “Base Prospectus”), which forms a part of and is included in the Registration Statement;
(c) the preliminary prospectus supplement, dated October 31, 2024 (together with the Base Prospectus, the “Preliminary Prospectus”), relating to the offering of the
Securities, in the form filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(d) the prospectus supplement, dated October 31, 2024 (together with the Base Prospectus, the “Prospectus”), relating to the offering of the Securities, in the form filed
with the Commission pursuant to Rule 424(b) of the Rules and Regulations;
(e) an executed copy of the Underwriting Agreement, dated October 31, 2024 (the “Underwriting Agreement”), among the Company, the Guarantor, and BNP Paribas Securities
Corp., as representative of the several Underwriters named therein (the “Underwriters”), relating to the sale by the Company and the Guarantor to the Underwriters of the Securities;
(f) an executed copy of the Indenture, including Article XVII of the Base Indenture and Article 10 of the Nineteenth Supplemental Indenture containing the guaranty obligations of
the Guarantor (the “Guarantee”);
(g) the global certificates evidencing the Notes executed by the Company and registered in the name of Cede & Co. (the “Note Certificates”), delivered by the Company to
the Trustee for authentication and delivery;
(h) a copy of the Restated Certificate of Incorporation of the Guarantor, as amended, certified by the Secretary of State of the State of Delaware and certified pursuant to the
Guarantor Secretary’s Certificate;
(i) a copy of the Amended and Restated Bylaws of the Guarantor, as amended and in effect as of the date hereof and certified pursuant to the Guarantor Secretary’s Certificate (as
defined below);
(j) a copy of certain resolutions of the Board of Directors of the Guarantor, adopted on November 19, 2014, a copy of certain resolutions of the Board of Directors of the
Guarantor, adopted on February 1, 2023, a copy of certain resolutions of the Board of Directors of the Guarantor, adopted on October 11, 2023 and a copy of the unanimous written consent of the Executive Committee of the Board of Directors of the
Guarantor, adopted on October 21, 2024, each certified pursuant to the Guarantor Secretary’s Certificate;
(k) an executed copy of a certificate of Lily Fu Claffee, Executive Vice President, General Counsel, Secretary and Chief Legal Officer of the Company, dated the date hereof (the “Company
Secretary’s Certificate”); and
(l) an executed copy of a certificate of Lily Fu Claffee, Executive Vice President, General Counsel, Secretary and Chief Legal Officer of the Guarantor, dated the date hereof (the
“Guarantor Secretary’s Certificate” and, together with the Company Secretary’s Certificate, the “Secretary’s Certificates”).
We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Company and the
Guarantor and such agreements, certificates and receipts of public officials, certificates of officers or other representatives of the Company, the Guarantor and others, and such other documents as we have deemed necessary or appropriate as a basis
for the opinions stated below.
In our examination, we have assumed the genuineness of all signatures, including electronic signatures, the legal capacity and competency of all natural persons, the authenticity of all
documents submitted to us as originals, the conformity to original documents of all documents submitted to us as facsimile, electronic, certified or photocopied copies, and the authenticity of the originals of such copies. As to any facts relevant to
the opinions stated herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and the Guarantor and others and of public officials, including the
facts and conclusions set forth in the Secretary’s Certificates and the factual representations and warranties contained in the Underwriting Agreement.
We do not express any opinion with respect to the laws of any jurisdiction other than (i) the laws of the State of New York and (ii) the
General Corporation Law of the State of Delaware (the “DGCL”) (all of the foregoing being referred to as “Opined-on Law”).
As used herein, “Transaction Documents” means the Indenture, the Underwriting Agreement and the Note Certificates.
Based upon the foregoing and subject to the qualifications and assumptions stated herein, we are of the opinion that:
1. When duly authenticated by the Trustee and issued and delivered by the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the
Indenture, the Note Certificates will constitute the valid and binding obligation of the Company, enforceable against the Company in accordance with their terms under the laws of the State of New York.
2. The Guarantee has been duly authorized by all requisite corporate action on the part of the Guarantor under the DGCL and, when the Note Certificates are issued and delivered by
the Company against payment therefor in accordance with the terms of the Underwriting Agreement and the Indenture, the Guarantee will constitute the valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with
its terms under the laws of the State of New York.
The opinions stated herein are subject to the following assumptions and qualifications:
(a) we do not express any opinion with respect to the effect on the opinions stated herein of any bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer,
preference and other similar laws or governmental orders affecting creditors’ rights generally, and the opinions stated herein are limited by such laws and governmental orders and by general principles of equity (regardless of whether enforcement is
sought in equity or at law);
(b) we do not express any opinion with respect to any law, rule or regulation that is applicable to any party to any of the Transaction Documents or the transactions contemplated
thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any such party or any of its affiliates as a result of the specific assets or business operations of such party or such affiliates;
(c) except to the extent expressly stated in the opinions contained herein, we have assumed that each of the Transaction Documents constitutes the valid and binding obligation of
each party to such Transaction Document, enforceable against such party in accordance with its terms;
(d) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document relating to any indemnification, contribution,
non-reliance, exculpation, release, limitation or exclusion of remedies, waiver or other provisions having similar effect that may be contrary to public policy or violative of federal or state securities laws, rules or regulations, or to the extent
any such provision purports to, or has the effect of, waiving or altering any statute of limitations;
(e) we do not express any opinion with respect to the enforceability of the provisions contained in Section 17.03 of the Base Indenture to the extent that such provisions limit
the obligation of the Guarantor under the Indenture or any right of contribution of any party with respect to the Guarantee;
(f) we do not express any opinion with respect to the enforceability of Article XVII of the Base Indenture to the extent that such section provides that the obligations of the
Guarantor are absolute and unconditional irrespective of the enforceability or genuineness of the Indenture or the effect thereof on the opinions herein stated;
(g) we do not express any opinion whether the execution or delivery of any Transaction Document by the Company or the Guarantor, or the performance by the Company or the Guarantor
of its obligations under any Transaction Document will constitute a violation of, or a default under, any covenant, restriction or provision with respect to financial ratios or tests or any aspect of the financial condition or results of operations
of the Company or the Guarantor or any of their respective subsidiaries;
(h) the opinions stated herein are limited to the agreements and documents specifically identified in the opinions contained herein (the “Specified Documents”) without regard to
any agreement or other document referenced in any such Specified Document (including agreements or other documents incorporated by reference or attached or annexed thereto) and without regard to any other agreement or document relating to any such
Specified Document that is not a Transaction Document;
(i) we call to your attention that irrespective of the agreement of the parties to any Transaction Document, a court may decline to hear a case on grounds of forum non conveniens
or other doctrine limiting the availability of such court as a forum for resolution of disputes; in addition, we call to your attention that we do not express any opinion with respect to the subject matter jurisdiction of the federal courts of the
United States of America in any action arising out of or relating to any Transaction Document; and
(j) we do not express any opinion with respect to the enforceability of any provision contained in any Transaction Document with respect to the choice of law or the choice of
forum of the parties to such Transaction Document and we have assumed that such choices are valid and effective under all applicable laws.
In addition, in rendering the foregoing opinions we have also assumed that, at all applicable times:
(a) the Company (i) was duly incorporated and was validly existing and in good standing, (ii) had requisite legal status and legal capacity under the laws of the jurisdiction of
its organization and (iii) has complied and will comply with all aspects of the laws of the jurisdiction of its organization in connection with the transactions contemplated by, and the performance of its obligations under, the Transaction Documents;
(b) the Company had the corporate power and authority to execute, deliver and perform all its obligations under each of the Transaction Documents;
(c) each of the Transaction Documents had been duly authorized, executed and delivered by all requisite corporate action on the part of the Company;
(d) neither the execution and delivery by the Company or the Guarantor of the Transaction Documents to which the Company or the Guarantor is a party nor the performance by the
Company and the Guarantor of their respective obligations thereunder, including the issuance and sale of the Securities contemplated thereby: (i) conflicted or will conflict with the certificate of incorporation, bylaws, or any other comparable
organizational document of the Company, (ii) constituted or will constitute a violation of, or a default under, any lease, indenture, agreement or other instrument to which the Company or the Guarantor or their respective properties are subject
(except that we do not make the assumption set forth in this clause (ii) with respect to those agreements and instruments expressed to be governed by the laws of the State of New York which are listed in Part II of the Registration Statement or the
Company’s and the Guarantor’s combined Annual Report on Form 10-K for the year ended December 31, 2023), (iii) contravened or will contravene any order or decree of any governmental authority to which the Company or the Guarantor or their respective
properties are subject, or (iv) violated or will violate any law, rule or regulation to which the Company or the Guarantor or their respective properties are subject (except that we do not make the assumption set forth in this clause (iv) with
respect to the Opined-on Law);
(e) neither the execution and delivery by the Company or the Guarantor of the Transaction Documents to which the Company or the Guarantor is a party nor the performance by the
Company and the Guarantor of their respective obligations thereunder, including the issuance and sale of the Securities contemplated thereby, required or will require the consent, approval, licensing or authorization of, or any filing, recording or
registration with, any governmental authority under any law, rule or regulation of any jurisdiction; and
(f) subsequent to the effectiveness of the Base Indenture and immediately prior to the effectiveness of the Nineteenth Supplemental Indenture, the Base Indenture has not been
amended, restated, supplemented or otherwise modified in any way that affects or relates to the Securities.
Jeffrey M. Gershon, Associate General Counsel of the Company, may rely on this opinion, subject to the limitations and assumptions set forth in this opinion, as if it were addressed to
him, in rendering his opinion dated the date hereof, which is to be filed herewith as Exhibit 5.1 to the Company’s and the Guarantor’s Current Reports on Form 8-K.
We hereby consent to the reference to our firm under the heading “Legal Matters” in the Preliminary Prospectus and the Prospectus. In giving this consent, we do not thereby admit that we
are within the category of persons whose consent is required under Section 7 of the Securities Act or the Rules and Regulations. We also hereby consent to the filing of this opinion with the Commission as an exhibit to the Company’s Current Report on
Form 8-K being filed on the date hereof and incorporated by reference into the Registration Statement. This opinion is expressed as of the date hereof unless otherwise expressly stated, and we disclaim any undertaking to advise you of any subsequent
changes in the facts stated or assumed herein or of any subsequent changes in applicable laws.
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Very truly yours,
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/s/ Skadden, Arps, Slate, Meagher & Flom LLP
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MJS