Exhibit 1.1
TRIUMPH BANCORP, INC.
(a Texas
corporation)
6.50% Fixed-to-Floating Rate Subordinated Notes due September 30, 2026
UNDERWRITING AGREEMENT
September 28, 2016
SANDLER O’NEILL +
PARTNERS, L.P.
FIG PARTNERS, LLC
as
Representatives of the several Underwriters
|
c/o
|
Sandler O’Neill + Partners, L.P.
|
1251 6
th
Avenue
New York, NY 10020
FIG Partners, LLC
100
Colony Square
1175 Peachtree Street, NE, Suite 2250
Atlanta, GA 30361
Ladies and Gentlemen:
Triumph Bancorp, Inc., a Texas corporation (the “
Company
”), confirms its agreement (the “
Agreement
”) with
Sandler O’Neill + Partners, L.P. (“
Sandler O’Neill
”) and FIG Partners, LLC (“
FIG
”) and each of the other Underwriters named in Schedule A hereto (collectively, the “
Underwriters
,” which
term shall also include any underwriter substituted as hereinafter provided in
Section 10
hereof), for whom Sandler O’Neill and FIG are acting as representatives (in such capacity, the “
Representatives
”), with respect to
the issue and sale by the Company and the purchase by the Underwriters, acting severally and not jointly, of $50,000,000 aggregate principal amount of its 6.50% Fixed-to-Floating Rate Subordinated Notes due September 30, 2026 (the
“
Securities
”). The Securities will be issued in book-entry only form to Cede & Co. as nominee of The Depository Trust Company (“
DTC
”) pursuant to an Indenture between the Company and Wells Fargo Bank,
National Association, as Trustee (the “
Trustee
”), to be dated as of September 30, 2016, as supplemented by the First Supplemental Indenture, to be dated as of September 30, 2016 (together, the “
Indenture
”).
The Company has filed with the Securities and Exchange Commission (the “
Commission
”) a registration statement on Form S-3
(No. 333-213169), including the related preliminary prospectus or prospectus covering the registration of certain securities, including the Securities, under the Securities Act of 1933, as amended (the “
1933 Act
”). Such registration
statement has been declared effective by the Commission, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended (the “
1939 Act
”), and the Company has filed such post-effective amendments thereto as
may be required prior to the execution of this Agreement and each such post-effective amendment is effective under the 1933 Act. Such registration statement, at any given time, including any amendments
thereto existing at such time, the exhibits and any schedules thereto on file with the Commission at such time, the information incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act at such time and the information otherwise deemed to be a part thereof or included therein at such time by the rules and regulations of the Commission under the 1933 Act (the “
1933 Act Regulations
”), is referred
to herein as the “
Registration Statement
.” In the event that the Company shall file a registration statement pursuant to Rule 462(b) under the 1933 Act (a “
Rule 462(b) Registration Statement
”) in connection
with the offering of the Notes, then, from and after the date of such filing, all references herein to the “Registration Statement” shall be deemed to mean and include such Rule 462(b) Registration Statement, mutatis mutandis, unless
otherwise expressly stated or the context otherwise requires. The Company will prepare and file a prospectus supplement relating to the Securities with the Commission in accordance with the provisions of Rule 430B of the 1933 Act Regulations
(“
Rule 430B
”) and paragraph (b) of Rule 424 of the 1933 Act Regulations (“
Rule 424(b)
”). Any information included in such prospectus supplement that was omitted from the Registration Statement or any post-effective
amendment thereto that is deemed to be part thereof and included therein pursuant to Rule 430B is referred to herein as “
Rule 430B Information
.” The final prospectus and prospectus supplement used in connection with the
offering of the Securities, including the documents incorporated by reference or deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, in the form first furnished to the Underwriters for use in connection
with the offering of the Securities, are referred to herein collectively as the “
Prospectus
.” Each prospectus and prospectus supplement used in connection with the offering of the Securities that omitted the Rule 430B Information is
herein called a “
preliminary prospectus
.” For purposes of this Agreement, all references to the Registration Statement, any preliminary prospectus, the Prospectus or any amendment or supplement to any of the foregoing shall be
deemed to include any copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“
EDGAR
”).
All references in this Agreement to financial statements and schedules and other information which is “contained,”
“included” or “stated” (or other references of like import) in the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include all such financial statements and schedules and other information
which are incorporated by reference in, or otherwise deemed by the 1933 Act Regulations to be part of or included in, the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, prior to the execution of this
Agreement; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act of 1934,
as amended (the “
1934 Act
”), which is incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case
may be, after the execution of this Agreement.
SECTION 1.
Representations and Warranties
.
(a)
Representations and Warranties by the Company
. The Company represents and warrants to each Underwriter, as of the date hereof, at
the Applicable Time (as defined herein) and at the Closing Time (as defined in
Section 2(b)
), and agrees with each Underwriter, as follows:
(i)
Not an “Ineligible Issuer”
. (A) At the time of filing the Registration Statement, (B) at the time of each
subsequent amendment to the Registration Statement for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act
or form of prospectus) and (C) at the date hereof, the Company was not an “ineligible issuer” as defined in Rule 405 of the 1933 Act Regulations (“
Rule 405
”). At the earliest time that the Company or another offering
participant made a
bona fide
offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Securities, the Company was not nor is it an “ineligible issuer” (as defined in Rule 405).
2
(ii)
Registration Statement, Prospectus and Disclosure Package at Time of
Sale
. The Company meets the requirements for use of Form S-3 under the 1933 Act. The Registration Statement became effective on September 23, 2016, and any post-effective amendment thereto has become effective under the 1933 Act. No stop
order suspending the effectiveness of the Registration Statement, including any Rule 462(b) Registration Statement, or any post-effective amendment thereto has been issued under the 1933 Act and no proceedings for that purpose have been instituted
or are pending or, to the knowledge of the Company, are contemplated by the Commission, and the Company has complied with any requests on the part of the Commission for additional information with respect to the Registration Statement.
At the respective times the Registration Statement and any post-effective amendments thereto became effective, at each deemed
effective date with respect to the Underwriters and the Securities pursuant to Rule 430B(f)(2) and at the Closing Time, the Registration Statement and any amendments thereto complied, complies and will comply, as the case may be, in all material
respects with the requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act, and the rules and regulations of the Commission under the 1939 Act (the “
1939 Act Regulations
”), and neither the Registration Statement nor any
amendment thereto contained, contains or will contain, as the case may be, an untrue statement of a material fact or omitted, omits or will omit, as the case may be, to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. Neither the General Disclosure Package (as defined below), at the Applicable Time, nor Prospectus at the Closing Time, included, includes or will include, as the case may be, an untrue statement of a material fact
or omitted, omits or will omit, as the case may be, to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The preliminary prospectus and the Prospectus
complied, when filed with the Commission, in all material respects with the 1933 Act, 1933 Act Regulations and the 1939 Act, and each preliminary prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of
the Securities was identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable Time (as defined below), each Issuer-Represented Free Writing Prospectus (as defined below) and the
Statutory Prospectus (as defined below), all considered together (collectively, the “
General Disclosure Package
”), did not include an untrue statement of a material fact or omit to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not misleading.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or the Prospectus or the General Disclosure Package or any amendment or supplement thereto made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives expressly for use in the Registration Statement or the Prospectus or any amendment or supplement thereto. For purposes of this paragraph, the only
information so furnished shall be the information in the third paragraph under the heading “Underwriting,” and the information under the heading “Underwriting – Price Stabilization, Short Positions,” in each case contained
in the Prospectus (collectively, the “
Underwriter Information
”).
As used in this subsection and elsewhere
in this Agreement:
“
Applicable Time
” means 5:00 p.m. (New York City time) on September 28, 2016 or such
other time as agreed by the Company and the Representatives.
3
“
Statutory Prospectus
,” at any given time, means the base
prospectus that is included in the Registration Statement and the preliminary prospectus supplement relating to the Securities immediately prior to that time, including the documents incorporated by reference therein at such time. For purposes of
this definition, information contained in a form of prospectus that is deemed retroactively to be a part of the Registration Statement pursuant to Rule 430B shall be considered to be included in the Statutory Prospectus only at the actual time that
such form of prospectus is filed with the Commission pursuant to Rule 424(b).
“
Issuer-Represented Free Writing
Prospectus
” means any “issuer free writing prospectus,” as defined in (h)(i) of Rule 433 of the 1933 Act Regulations (“
Rule 433
”), relating to the Securities that (i) is required to be filed with the Commission by
the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) is exempt from filing with the Commission pursuant to Rule
433(d)(5)(i) because it contains a description of the Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g).
Each Issuer-Represented Free Writing Prospectus, at its
issue date and at all subsequent times through the completion of the offer and sale of the Securities or until any earlier date that the Company notified or notifies the Representatives, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration Statement, the Statutory Prospectus or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed
to be a part thereof that has not been superseded or modified.
(iii)
Incorporated Documents
. The documents
incorporated by reference in the preliminary prospectus, the General Disclosure Package and the Prospectus, when read together with the other information in the Registration Statement, at the time the Registration Statement became effective or such
documents were filed with the Commission, as the case may be, did not, and at the Applicable Time did not and at the Closing Time will not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not misleading. The documents incorporated or deemed to be incorporated by reference in the Prospectus, when filed with the Commission, conformed or will conform, as the
case may be, in all material respects to the applicable requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “
1934 Act Regulations
”).
(iv)
Independent Accountants
.
(A) Crowe Horwath LLP, who certified the financial statements and supporting schedules of the Company included in the
Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations and the rules of the Public Company Accounting Oversight Board and, to the Company’s knowledge, are not and have not been in violation of
the auditor independence requirements of the Sarbanes Oxley Act of 2002 and the related rules and regulations of the Commission (the “
Sarbanes-Oxley Act
”) in respect of the entity whose financial statements it audited.
(B) Alexander Thompson Arnold PLLC, who certified certain financial statements of ColoEast Bancshares, Inc. included in the
Prospectus, are independent public accountants as required by the 1933 Act and the 1933 Act Regulations and the rules of the Public Company Accounting Oversight Board and, to the Company’s knowledge, are not and have not been in violation of
the auditor independence requirements of the Sarbanes Oxley Act in respect of the entity whose financial statements it audited.
4
(v)
Financial Statements
. The financial statements included or
incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly, in all material respects, the financial condition, results of operations and
cash flows of the Company and its consolidated subsidiaries, at the dates indicated and their respective statements of operations, stockholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified.
Such financial statements have been prepared in compliance with the requirements of the 1933 Act and the 1934 Act and in conformity with accounting principles generally accepted in the United States of America (“
GAAP
”) applied on a
consistent basis throughout the periods involved. Any selected financial data and the summary financial information included or incorporated by reference in the Registration Statement, the General Disclosure Package, preliminary prospectus and
the Prospectus present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement,
the General Disclosure Package and the Prospectus. The supporting schedules, if any, included therein present fairly, in all material respects, the information required to be stated therein. To the extent applicable, all disclosures contained in the
Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission) comply with Regulation G of the 1934 Act, the 1934
Act Regulations and Item 10 of Regulation S-K under the 1933 Act, as applicable, in all material respects. The pro forma financial statements and the related notes thereto included or incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly, in all material respects, the information shown therein and have been prepared in accordance with the Commission’s rules and guidelines in all material respects. The interactive data
in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus fairly presents the required information in all material respects and has been prepared in
accordance with the Commission’s rules and guidelines applicable thereto.
(vi)
Certain Data and Forward-Looking
Statements
. All statistical or market-related data included or incorporated by reference in the Registration Statement, the General Disclosure Package, and the Prospectus are based on or derived from sources that the Company reasonably believes
to be reliable and accurate, and the Company has obtained the consent to the use of such data from such sources to the extent required. Each “forward-looking statement” (within the meaning of Section 27A of the 1933 Act or Section 21E of
the 1934 Act) contained or incorporated by reference in the Registration Statement, the General Disclosure Package, preliminary prospectus and the Prospectus has been made or reaffirmed with a reasonable basis and in good faith.
(vii)
No Material Adverse Change in Business
. Since the respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change, or any development that could reasonably be expected to have a material adverse change, in
the condition, financial or otherwise, or in the earnings, properties, or business of the Company and its subsidiaries, considered as one enterprise, whether or not arising in the ordinary course of business (a “
Material Adverse
Effect
”), (B) there have been no liabilities or obligations incurred, direct or contingent, nor transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business, which are material
with respect to the Company and its subsidiaries considered as one enterprise, (C) except for the redemption of the redemption of the Fixed Rate Cumulative Perpetual Preferred Stock, Series One, and Fixed Rate Cumulative Perpetual Preferred Stock,
Series Two of ColoEast Bancshares, Inc. (collectively, the “
TARP preferred stock
”), there has not been any
5
material change in the capital stock of the Company or any of its Significant Subsidiaries (as defined below) (other than transfers or issuances of capital stock in the ordinary course of
business pursuant to the Company’s employee benefit plans or repurchases of common stock by the Company pursuant to a share repurchase program disclosed in the Prospectus) or any material increase in the long term indebtedness of the Company or
its Significant Subsidiaries and (D) except for (1) dividends on the shares of the Company’s Series A Preferred Stock and Series B Preferred Stock (the “
Company preferred stock
”), (2) dividends on the TARP preferred stock, and
(3) regular quarterly dividends on the trust preferred securities issued by subsidiaries of the Company (the “
trust preferred securities
”), there has been no dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock (each of clauses (A), (B), (C) and (D), a “
Material Adverse Change
”).
(viii)
Internal Accounting Controls
. The Company and its subsidiaries maintain a system of internal accounting controls
sufficient to provide reasonable assurance that (A) transactions are executed in accordance with the management’s general or specific authorizations, (B) transactions are recorded as necessary to permit preparation of financial statements in
conformity with GAAP and to maintain asset accountability, (C) access to assets is permitted only in accordance with the management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company’s internal control over financial reporting is effective, and the Company is not aware of any material weaknesses in its internal
control. Since the date of the Company’s latest audited financial statements incorporated by reference in the Registration Statement, the General Disclosure Package, and the Prospectus, there has been no change in the Company’s internal
control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.
(ix)
Disclosure Controls
. The Company has established and maintains disclosure controls and procedures (as such term is
defined in Rule 13a-15(e) and 15d-15(e) under the 1934 Act). Such disclosure controls and procedures (A) are designed to ensure that material information relating to the Company, including its consolidated subsidiaries, is made known to the
Company’s Chief Executive Officer and its Chief Financial Officer by others within those entities and (B) are effective to perform the functions for which they were established. The Company’s auditors and the Audit Committee of the Board
of Directors have not been advised that there is (1) any fraud, whether or not material, that involves management or other employees who have a role in the Company’s internal controls or (2) any material weaknesses in internal controls. 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 material weaknesses. The principal executive officer (or the equivalents) and principal financial officer (or the equivalent) of the Company have made all certifications required by the Sarbanes-Oxley Act, and the statements made in
each such certification are accurate; the Company, its subsidiaries and to the Company’s knowledge, its directors and officers, are each in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act.
(x)
Regulatory Matters
. The Company and its subsidiaries are in compliance in all material respects with all laws
administered by and regulations of any Governmental Entity (as defined herein) applicable to it or to them (including, without limitation, all regulations and orders of, or agreements with, the Texas Department of Savings and Mortgage Lending, the
Federal Deposit Insurance Corporation, the Board of Governors of the Federal Reserve System and the Office of Foreign Assets Control, the Equal Credit Opportunity Act, the Fair Housing Act, the Community Reinvestment Act, the Home Mortgage
Disclosure Act, all other applicable fair lending laws or other
6
laws relating to discrimination and the Bank Secrecy Act and Title III of the U.S.A. Patriot Act), the failure to comply with which would have a Material Adverse Effect. Except as disclosed in
the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is subject or is party to, or has received any notice or advice that any of them may become subject or party to any
investigation with respect to, any corrective, suspension or cease-and-desist order, agreement, consent agreement, memorandum of understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment
letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter from, or has adopted any board resolutions at the request of, any Regulatory Agency (as defined below) that currently relates to
or restricts in any material respect (considered on a consolidated basis) the conduct of their business or that in any manner relates to their capital adequacy, credit policies or management in any material respect (each, a “
Regulatory
Agreement
”), nor has the Company or any of its subsidiaries been advised by any Regulatory Agency that it is considering issuing or requesting any such Regulatory Agreement. There is no unresolved violation, criticism or exception by any
Regulatory Agency with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries which, in the reasonable judgment of the Company, is expected to result in a Material Adverse Effect. As used herein,
the term “Regulatory Agency” means any federal or state agency charged with the supervision or regulation of depositary institutions, or holding companies of depositary institutions, or engaged in the insurance of depositary institution
deposits, or any court, administrative agency or commission or other Governmental Entity, authority or instrumentality having supervisory or regulatory authority with respect to the Company or any of its subsidiaries.
(xi)
Regulatory Compliance
. The deposit accounts of TBK Bank, SSB (the “
Bank
”) are insured up to the
applicable limits by the Deposit Insurance Fund of the Federal Deposit Insurance Corporation (the “
FDIC
”) to the fullest extent permitted by law and the rules and regulations of the FDIC, and no proceeding for the revocation or
termination of such insurance has been instituted or is pending or, to the knowledge of the Company, is threatened or contemplated.
(xii)
Good Standing of the Company
. The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Texas and has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus,
and to enter into and perform its obligations under this Agreement, and to issue the Securities. The Company is duly qualified as a foreign corporation to transact business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(xiii)
Corporate Existence of Subsidiaries
. Each of the Company’s subsidiaries that is a “significant
subsidiary” as defined in Rule 1-02 of Regulation S-X (each, a “
Significant Subsidiary
” and, collectively, the “
Significant Subsidiaries
”) has been duly organized and is validly existing under the laws of the
jurisdiction of its incorporation or organization, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus
and is duly qualified as a foreign corporation to transact business and is in good standing 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
where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect. The Bank is a state savings bank chartered under the laws of the State of Texas and its charter is in full force and effect. With respect to
each Significant Subsidiary of the Company, except as otherwise disclosed in the Registration Statement, the General Disclosure
7
Package and the Prospectus, all of the issued and outstanding shares of capital stock of such Significant Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and, except for the trust preferred securities, are owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, and none of the outstanding
shares of capital stock of any Significant Subsidiary were issued in violation of any preemptive or similar rights of any security holder of such Significant Subsidiary.
(xiv)
Authorization of Agreement
. This Agreement has been duly authorized, executed and delivered by the Company. When
duly executed by the Underwriters, this Agreement will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by bankruptcy, insolvency (including,
without limitation, all laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting enforcement of creditors’ rights generally or by general principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law), and subject to 12 U.S.C. § 1818(b)(6)(D) (or any successor statute) and similar bank regulatory powers and to the application of principles of public policy, and except as rights to indemnity or
contribution, including but not limited to, indemnification provisions set forth in
Section 8
of this Agreement, may be limited by federal or state securities law and the public policy underlying such laws.
(xv)
Authorization of Indenture
. The Indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid, legal and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar
laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity) (collectively, the “
Enforceability
Exceptions
”).
(xvi)
Authorization of the Securities
. The Securities have been duly authorized by the
Company and, at the Closing Time, will have been duly executed by the Company and, when authenticated in the manner provided for in the Indenture and delivered by the Company against payment therefor as described in the Prospectus or as contemplated
in the Indenture, will constitute valid, legal and binding obligations of the Company, enforceable against the Company in accordance with their terms, except to the extent that enforceability may be limited by the Enforceability Exceptions; the
Securities will be in the form contemplated by, and will be entitled to the benefits of, the Indenture.
(xviii)
Description of the Securities and the Indenture
. The Securities will conform in all material respects to the respective statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus.
The Indenture will conform in all material respects to the description thereof contained in the Registration Statement, General Disclosure Package, and the Prospectus.
(xix)
Absence of Defaults and Non-contravention
. Neither the Company nor any of its subsidiaries is in violation of its
charter or bylaws, in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement or instrument
to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any subsidiary is subject, except for such violations or defaults that would not,
individually or in the aggregate, result in a Material Adverse Effect, or in violation of any U.S. or non-U.S. federal, state or local statute or law (including, without limitation, common law) or ordinance, or any judgment, decree, rule,
regulation, order or injunction of any U.S. or non-U.S. federal, state, local or other governmental or regulatory authority,
8
governmental or regulatory agency or body, court, arbitrator or self-regulatory organization applicable to the Company or any of its subsidiaries or any of their respective properties, assets or
operations (each, a “
Governmental Entity
”), except for any such default or violation that would not, individually or in the aggregate, have a Material Adverse Effect. The execution, delivery and performance of this Agreement, the
issuance and sale of the Securities by the Company and the performance by the Company of all of its obligations under this Agreement and the consummation of the transactions contemplated herein, therein and in the Registration Statement, the General
Disclosure Package and the Prospectus and compliance by the Company with its obligations hereunder and thereunder have been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to, (A) any indenture, mortgage, deed of trust, loan agreement, note, lease or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (B) the provisions of the charter, bylaws or other organizational documents of the Company or any of its subsidiaries or (C) any statute or any
order, rule or regulation of any Governmental Entity having jurisdiction over the Company or any of its subsidiaries or any of their property, assets or operations except, with respect to clauses (A) and (C), for those conflicts, breaches, defaults,
Repayment Events, liens, charges or encumbrances that would not, singly or in the aggregate, result in a Material Adverse Effect. As used herein, a “
Repayment Event
” means any event or condition which gives the holder of any note,
debenture or other evidence of indebtedness (or any person acting on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or a portion of such indebtedness by the Company or any of its subsidiaries.
(xx)
Accuracy of Exhibits
. There are no contracts or documents which are required to be described in the Registration
Statement, the General Disclosure Package and the Prospectus or the documents incorporated by reference therein or to be filed as exhibits thereto which have not been so described and filed as required.
(xxi)
Absence of Labor Dispute
. No labor dispute with the employees of the Company or any of its subsidiaries exists or,
to the knowledge of the Company, is imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of the Company or any of its subsidiaries, which, in either case, would result in a Material Adverse Effect.
(xxii)
Absence of Proceedings
. There is no action, suit, proceeding, inquiry or investigation before or brought by
any court or Governmental Entity, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting the Company or any of its subsidiaries, which (A) is required to be disclosed in the Registration Statement or
the Prospectus (other than as disclosed therein), (B) would reasonably be expected to result in a Material Adverse Effect or (C) might materially and adversely affect the assets or operations of the Company or any of its subsidiaries or the
consummation of the transactions contemplated in this Agreement or the performance by the Company of its obligations hereunder. Except as described in the Registration Statement, the Prospectus and the General Disclosure Package, there are no legal
or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective assets is the subject, including ordinary routine litigation incidental to the business, which would, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
(xxiii)
Possession of Intellectual Property
. The Company
and its subsidiaries own or possess, or can acquire on reasonable terms, adequate patents, patent licenses, trademarks, service marks and
9
trade names necessary to carry on their businesses as presently conducted and the Company and its subsidiaries have not received any notice of infringement of or conflict with asserted rights of
others with respect to any patents, patent licenses, trademarks, service marks or trade names that, in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have a Material Adverse Effect. Neither the Company nor any of
its subsidiaries has infringed or is infringing on the intellectual property of a third party, and, except as are described in the Registration Statement, the General Disclosure Package and the Prospectus, neither the Company nor any of its
subsidiaries has received notice of a claim by a third party to the contrary, except where such infringement would not, singly or in the aggregate, result in a Material Adverse Effect.
(xxiv)
Possession of Licenses and Permits
. The Company and its subsidiaries possess such permits, licenses, approvals,
consents and other authorizations (collectively, “
Governmental Licenses
”) issued by the appropriate Governmental Entities necessary to conduct the business now operated by them, and as described in the Registration Statement, the
Prospectus and the General Disclosure Package, and have made all declarations and filings with the appropriate Governmental Entities that are necessary for the conduct of their respective businesses as described in the Registration Statement,
the Prospectus and the General Disclosure Package, except where the failure so to possess such Governmental Licenses or make such declarations or filings would not, singly or in the aggregate, result in a Material Adverse Effect. The Company and its
subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where the failure to so comply would not, singly or in the aggregate, result in a Material Adverse Effect. All of the Governmental Licenses are
valid and in full force and effect, except where the invalidity of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and effect would not, singly or in the aggregate, result in a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation or modification of any such Governmental Licenses which, singly or in the aggregate, if the subject of an unfavorable decision, ruling
or finding, would result in a Material Adverse Effect.
(xxv)
Title to Property
. The Company and its subsidiaries
have good and marketable title to all real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case, free and clear of all mortgages, pledges, liens, security interests, claims,
restrictions or encumbrances of any kind except such as (A) would not materially interfere with the use made and proposed to be made of such property by the Company or such subsidiary or (B) would not have a Material Adverse Effect. All of the
leases and subleases material to the business of the Company and its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described in the Registration Statement, the General Disclosure
Package and the Prospectus, are in full force and effect, and neither the Company nor any subsidiary has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary under any
such lease or sublease or affecting or questioning the rights of the Company or such subsidiary to the continued possession of the leased or subleased premises under any such lease or sublease and that, in any such case, would have a Material
Adverse Effect.
(xxvi)
Absence of Manipulation
. Neither the Company nor any affiliate of the Company has taken, nor
will the Company or any affiliate take, directly or indirectly, any action which is designed to or which has constituted or which would be expected to cause or result in the unlawful stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(xxvii)
Absence of Further Requirements
. No filing
with, or consent, approval, authorization, order, license, registration, qualification or decree of or with any Governmental Entity, other than
10
those that have been made or obtained, is necessary or required in connection with the due authorization, execution and delivery of this Agreement or for the offering, issuance, sale or delivery
of the Securities, the performance by the Company of its obligations hereunder or the consummation by the Company of the transactions contemplated by this Agreement, except as may be required by the securities or Blue Sky laws of the various states
and other jurisdictions.
(xxviii)
Investment Company Act
. The Company is not required, and upon the issuance and
sale of the Securities as herein contemplated and the application of the net proceeds therefrom as described in the Registration Statement, the General Disclosure Package and the Prospectus will not be required, to register as an “investment
company” under the Investment Company Act of 1940, as amended.
(xxix)
Environmental Laws
. The Company and its
subsidiaries are (A) in compliance with any and all applicable foreign, federal, state and local laws and regulations relating to the protection of human health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants (“
Environmental Laws
”), (B) have received and are in compliance with all permits, licenses or other approvals required of them under applicable Environmental Laws to conduct their respective businesses and (C) have not
received notice of any actual or potential liability for the investigation or remediation of any disposal or release of hazardous or toxic substances or wastes, pollutants or contaminants, except where such non-compliance with Environmental Laws,
failure to receive required permits, licenses or other approvals, or liability would not have a Material Adverse Effect.
(xxx)
Compliance with Money Laundering Laws
. Except as otherwise disclosed in all material respects in the Registration
Statement, the Prospectus and the General Disclosure Package, the operations of the Company and its subsidiaries are and, to the knowledge of the Company and its subsidiaries, have been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes 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 its subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company or its subsidiaries, threatened.
(xxxi)
Compliance with OFAC
. Neither the Company nor any of its subsidiaries nor, to the Company’s knowledge, any
director, officer, agent, employee or controlled affiliate of the Company or any of its subsidiaries or other person acting on their behalf is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S.
Treasury Department (“
OFAC
”); and the Company will not knowingly directly or indirectly use the proceeds of the transactions contemplated hereby, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint
venture partner or other person or entity, for the purpose of financing the activities of or business with any person, or in any country or territory, that currently is the subject to any U.S. sanctions administered by OFAC.
(xxxii)
Insurance
. The Company and each of its subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent and customary in the business in which they are engaged. Neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for.
Neither the Company nor any of its subsidiaries has any reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse Effect.
11
(xxxiii)
Capitalization
. The authorized and outstanding capitalization and
consolidated long term debt (i.e., a maturity greater than one year) of the Company is as set forth in the Registration Statement, the General Disclosure Package and the Prospectus. There have not been any subsequent issuances of capital stock of
the Company since such date. There have not been any additional long term borrowings by the Company or its consolidated subsidiaries since such date, except with respect to advances or securities sold under agreements to repurchase by the Bank in
its ordinary course of business.
(xxxiv)
Dividends
. No subsidiary of the Company is subject to any material direct
or indirect prohibition on paying any dividends to the Company, on making any other distribution on such subsidiary’s capital stock, on repaying to the Company any loans or advances to such subsidiary from the Company or on transferring any of
such subsidiary’s property or assets to the Company or any other subsidiary of the Company, except as described in the Registration Statement, the General Disclosure Package and the Prospectus.
(xxxv)
Taxes
. All material tax returns required to be filed by the Company or any of its subsidiaries have been timely
filed, and all taxes and other assessments of a similar nature (whether imposed directly or through withholding) including any interest, additions to tax or penalties applicable thereto due or claimed to be due from such entities have been timely
paid, other than those being contested in good faith and for which adequate reserves have been provided or which if not paid, would not individually or in the aggregate, result in a Material Adverse Effect.
(xxxvi)
Foreign Corrupt Practices Act
. Neither the Company nor any of its subsidiaries nor, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries, is aware of or has taken any action, directly or indirectly, that would result in a violation by such persons of the Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder, and the Company and its subsidiaries have instituted and maintain policies and procedures designed to ensure continued compliance therewith.
(xxxvii)
Derivative Financial Instruments
. Any and all material swaps, caps, floors, futures, forward contracts, option
agreements (other than stock options issued to the Company’s employees, directors, agents or consultants) and other derivative financial instruments, contracts or arrangements, whether entered into for the account of the Company or one of its
subsidiaries or for the account of a customer of the Company or one of its subsidiaries, were entered into in the ordinary course of business and in accordance with applicable laws, rules, regulations and policies of all applicable regulatory
agencies and with counterparties believed by the Company to be financially responsible at the time. The Company and each of its subsidiaries have duly performed in all material respects all of their obligations thereunder to the extent that such
obligations to perform have accrued, and there are no breaches, violations or defaults or allegations or assertions of such by any party thereunder which would, singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect.
(xxxviii)
ERISA
. Each of the Company, the Company’s subsidiaries and their respective “ERISA
Affiliates” (as defined below) are in compliance in all material respects with all applicable provisions of the Employee Retirement Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder
(collectively, “
ERISA
”). No “reportable event” (as defined in ERISA) has occurred with respect to any “employee benefit plan” (as defined in ERISA) for which the Company, any of the Company’s subsidiaries or
their respective ERISA Affiliates would have any liability. None of the Company, the Company’s subsidiaries or their respective ERISA Affiliates have incurred, or expect to incur, material liability under (i) Title IV of
12
ERISA with respect to termination of, or withdrawal from, any “employee benefit plan” or (ii) Sections 412, 4971, 4975 or 4980B of the United States Internal Revenue Code of 1986, as
amended, and the regulations and published interpretations thereunder (collectively, the “
Code
”). Each “employee benefit plan” for which the Company, any of the Company’s subsidiaries or any of their respective ERISA
Affiliates would have any liability that is intended to be qualified under Section 401(a) of the Code is so qualified in all material respects and, to the Company’s knowledge, nothing has occurred, whether by action or by failure to act, which
would cause the loss of such qualification. “
ERISA Affiliate
” means, with respect to the Company or any of its subsidiaries, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Code or
Section 4001(b) of ERISA of which the Company or such subsidiary is a member.
(xxxix)
Bank Holding Company Act; Banking
Regulation
. The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended (the “
BHC Act
”), and the Company has duly elected to be a financial holding company under the BHC Act.
The Bank holds the requisite authority to do business as a validly existing state savings bank chartered under the laws of the State of Texas.
(xl)
Certain Transactions
. Neither the Company nor any of its subsidiaries has participated in any listed transaction,
as defined in Treasury Regulation Section 1.6011-(4)(b)(2).
(xli)
Unlawful Payments
. None of the Company, any of
the Company’s subsidiaries or, to the knowledge of the Company, any affiliate of the Company or any of its subsidiaries has: (A) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to
political activity; (B) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; or (C) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment.
(xlii)
Pending Procedures and Examinations
. The Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(xliii)
No Unauthorized Dissemination of Materials
. Neither the Company nor any of the Company’s subsidiaries or
other affiliates has distributed or prior to the completion of the distribution of the Securities, will distribute any prospectus (as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the
Securities other than the Registration Statement, any preliminary prospectus, the General Disclosure Package, the Prospectus or other materials, if any, permitted by the 1933 Act or by the 1933 Act Regulations and approved by the Representatives in
accordance with
Section 3(m)
hereof.
(xliv)
Transactions
. Except as disclosed in the Registration Statement,
the General Disclosure Package and the Prospectus, neither the Company nor any of its subsidiaries is a party to a letter of intent, accepted term sheet or similar instrument or any binding agreement that contemplates an acquisition, disposition,
transfer or sale of the assets (as a going concern) or capital stock of the Company or of any subsidiary or business unit or any similar business combination transaction which would be material to the Company and its subsidiaries taken as a whole.
(xlv)
Broker Fees
. Other than as contemplated by this Agreement, there is no broker, finder or other party that is
entitled to receive from the Company or any of the Company’s subsidiaries any brokerage or finder’s fee or commission as a result of the transactions contemplated by this Agreement.
13
(xlvi)
No Registration Rights
. No person has the right to require the
Company or any of its subsidiaries to register any securities for sale under the 1933 Act by reason of the filing of the Registration Statement with the Commission or the issuance and sale of the Securities to be sold by the Company hereunder.
(b)
Officer’s Certificates
. Any certificate signed by any officer of the Company delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter as to the matters covered thereby on the date of such certificate.
SECTION 2.
Sale and Delivery to Underwriters; Closing
.
(a)
Sale and Purchase
. On the basis of the representations and warranties herein contained and subject to the terms and conditions
herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and each Underwriter, severally and not jointly, agrees to purchase from the Company, the aggregate principal amount of Securities set forth in Schedule A
opposite the name of such Underwriter, at a purchase price equal to 98.50% of the aggregate principal amount thereof, plus accrued and unpaid interest from September 30, 2016 to the Closing Time (as defined below) and payable at such Closing Time.
(b)
Payment
. Delivery of the Securities shall be made at the offices of Norton Rose Fulbright US LLP, 2200 Ross Avenue, Dallas,
Texas, 75201, or at such other place as shall be agreed upon by the Representatives and the Company, at 9:00 a.m. (central time) on September 30, 2016 (unless postponed in accordance with the provisions of
Section 10
), or such other time not
later than ten business days after such date as shall be agreed upon by the Representatives and the Company (such time and date of payment and delivery being herein called “
Closing Time
”).
It is understood that each Underwriter has authorized the Representatives, for its account, to accept delivery of, receipt for, and make
payment of the purchase price for, the Securities which it has agreed to purchase. Sandler O’Neill and FIG, each individually and not as representatives of the Underwriters, may (but shall not be obligated to) make payment of the purchase price
for the Securities to be purchased by any Underwriter whose funds have not been received by the Closing Time, but such payment shall not relieve such Underwriter from its obligations hereunder.
Payment for the purchase price of the Securities shall be made by the Representatives to the Company by wire transfer of immediately available
funds to a bank account designated by the Company, against delivery to the Representatives for the respective accounts of the Underwriters of the Securities to be purchased by them.
In performing its duties under this Agreement, the Underwriters shall be entitled to rely upon any notice, signature or writing that the
Underwriters shall in good faith believe to be genuine and to be signed or presented by a proper party or parties. The Underwriters may rely upon any opinions or certificates or other documents delivered by the Company or its counsel or designees to
them.
SECTION 3.
Covenants of the Company
. The Company covenants with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests
. The Company will notify the Representatives promptly, and confirm
the notice in writing, (i) when any post-effective amendment to the Registration Statement or a new registration statement relating to the Securities shall become effective, or any amendment or supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments with respect to the Registration Statement from the
14
Commission, (iii) of any request by the Commission for any amendment to the Registration Statement or the filing of a new registration statement or any amendment or supplement to the Prospectus
or any document incorporated therein by reference or otherwise deemed to be a part thereof or for additional information, (iv) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or such new
registration statement or of any order of any Governmental Entity preventing or suspending the use of any preliminary prospectus or the Prospectus, or of the suspension of the qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (v) if the Company becomes the subject of a proceeding under
Section 8A of the 1933 Act. With respect to the Securities, subject to Section 3(e), the Company will comply with the requirements of Rule 430B, will prepare the Prospectus in the form approved by the Representatives, will affect the filings
required under Rule 424(b) in the manner and within the time period specified therein (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule
424(b) under the 1933 Act Regulations was received for filing by the Commission and, in the event that it was not, it will promptly file such Prospectus. The Company will use its commercially reasonable efforts to prevent the issuance of any stop
order or other order and, if any stop order or other order is issued, to obtain the lifting thereof as soon as possible. The Company shall pay the required filing fees of the Commission relating to the Securities within the time required by Rule
456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations.
(b)
Delivery of Registration Statements
. The Company has furnished or will deliver to the Representatives and counsel for the
Underwriters, without charge, copies of the signed Registration Statement as originally filed and of each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated by reference therein) and
copies of all signed consents and certificates of experts, and will also deliver to the Representatives, without charge, a conformed copy of the Registration Statement as originally filed and of each amendment thereto (without exhibits) for each of
the Underwriters. The copies of the Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(c)
Delivery of Prospectuses
. The Company has delivered to each Underwriter, without charge, as many
copies of each preliminary prospectus and the Statutory Prospectus as such Underwriter reasonably requested, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required to be delivered under the 1933 Act, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The preliminary
prospectus, the Statutory Prospectus, the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to
the extent permitted by Regulation S-T.
(d)
Continued Compliance with Securities Laws
. The Company will comply with the 1933 Act,
the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations, the 1939 Act and the 1939 Act Regulations, as applicable so as to permit the completion of the distribution of the Securities as contemplated in this Agreement and in the Prospectus.
Prior to the Closing Time, the Company will immediately notify the Representative, and confirm such notice in writing, of (x) any filing made by the Company of information relating to the offering of the Securities with any securities exchange or
any
15
other regulatory body in the United States, and (y) any event or condition that results or is reasonably likely to result in a Material Adverse Change, which (i) makes any statement in the
Prospectus false or misleading or (ii) which is not disclosed in the Prospectus. If, at any time when a prospectus is required by the 1933 Act to be delivered in connection with sales of the Securities, any event or development occurs as a result of
which it is necessary, in the reasonable opinion of the Company or its counsel to amend or supplement the Prospectus in order that the Prospectus not include any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein not misleading in light of the circumstances existing at the time it is delivered to purchasers, or if for any other reason it shall be necessary, in the reasonable opinion of the Company or its counsel, during such
period to amend the Registration Statement or to file a new registration statement or to amend or supplement the Prospectus to comply with the 1933 Act or the 1933 Act Regulations, the Company promptly will (1) notify the Representatives of any such
event or development, (2) prepare and file with the Commission, subject to
Section 3(e)
hereof, such amendment, supplement or new registration statement which will correct such untrue statement or omission, effect such compliance or satisfy
such filing requirement, (3) use its best efforts to have any such amendment to the Registration Statement or new registration statement declared effective as soon as possible (if not an automatic shelf registration statement) and (4) supply any
amended or supplemented General Disclosure Package or Prospectus to the Underwriters in such quantities as they may reasonably request. If at any time following the issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs
an event or development as a result of which the General Disclosure Package or such Issuer-Represented Free Writing Prospectus, individually or together with other information that is part of the General Disclosure Package, as the case may be,
conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Securities), any preliminary prospectus, the Statutory Prospectus or the Prospectus or included, includes
or would include an untrue statement of a material fact or omitted, omits or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading,
the Company will promptly notify the Underwriters and will promptly amend or supplement, at its own expense, the General Disclosure Package or such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement or
omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions of
Section 5
hereof.
(e)
Amendment to Prospectus or Registration Statement
. Prior to the Closing Time, the Company will advise the Representatives promptly
of any notice of its intention to file or prepare any amendment to the Registration Statement or a new registration statement relating to the Securities or any amendment or supplement to any preliminary prospectus or the Prospectus and will furnish
the Representatives with copies thereof a reasonable amount of time prior to such proposed filing or use, as the case may be, and will not file or use any such document with respect to the Securities without the consent of the Representatives, which
consent shall not be unreasonably withheld. Neither the consent of the Representatives, nor the Representatives’ delivery of any such amendment or supplement, shall constitute a waiver of any of the conditions set forth in
Section 5
hereof. For purposes of clarity, nothing in this
Section 3(e)
shall restrict the Company from making any filings required in order to comply with its reporting obligations under the 1934 Act or the 1934 Act Regulations.
(g)
DTC
. The Company will cooperate with the Underwriters and use its commercially reasonable efforts to permit the Securities to be
eligible for clearance, settlement and trading through the facilities of DTC.
(h)
Blue Sky Compliance
. The Company will qualify
the Securities for offer and sale under the state securities, or blue sky, laws of such jurisdictions as the Representatives shall reasonably request and will
16
continue such qualifications in effect so long as required for the offering and resale of the Securities; provided that the Company shall not be required to (i) qualify as a foreign corporation
or other entity or as a dealer in securities in any jurisdiction in which it is not so qualified, (ii) file any general consent to service of process in any such jurisdiction or (iii) subject itself to taxation in any jurisdiction in which it is not
otherwise so subject.
(i)
Rule 158
. The Company will timely file such reports pursuant to the 1934 Act as are necessary in order
to make generally available to its security holders as soon as practicable an earnings statement for the purposes of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(k)
Use of Proceeds
. The Company will use the net proceeds received by it from the sale of the Securities in the manner specified in
the Registration Statement, the General Disclosure Package and the Prospectus.
(l)
Restriction on Sale of Securities
. Until the
Closing Time, the Company will not, without the prior written consent of the Underwriters, directly or indirectly, issue, sell, offer or contract to sell, grant any option for the sale of, or otherwise transfer or dispose of, any debt securities or
nonconvertible preferred stock, including any guarantee of such securities, or any securities convertible into or exchangeable for or representing the right to receive such securities, other than the Securities (except for the issuance of the
Securities issued pursuant to this Agreement).
(m)
Issuer-Free Writing Prospectus
. The Company represents and agrees that, unless
it obtains the prior written consent of the Representatives and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Representatives, it has not made and will not make any offer relating to
the Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be filed with the Commission.
Any such free writing prospectus, if any, consented to by the Company and the Representatives is referred to herein as an “
Issuer-Permitted Free Writing Prospectus
.” The Company represents that it has treated or agrees that it will
treat each Issuer-Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Issuer-Permitted Free Writing
Prospectus, including timely filing with the Commission where required, legending and record keeping.
Subject to the consent of the
Representatives required in the immediately preceding paragraph, the Company will prepare a final term sheet relating solely to the final pricing terms of the Securities (the “
Final Term Sheet
”) and will file the Final Term Sheet
within the period required by Rule 433(d)(5)(ii) on the date such final terms have been established for such Securities. The Final Term Sheet is an Issuer-Permitted Free Writing Prospectus for purposes of this Agreement. Notwithstanding anything to
the contrary contained herein, the Company consents to the use by any Underwriter of a free writing prospectus that contains only (a) (i) information describing the preliminary terms of the Securities generally or the Securities specifically or
their offering or (ii) information that describes the final terms of the Securities or their offering and that is or is to be included in the Final Term Sheet or (b) other customary information that is not “issuer information,” as defined
in Rule 433.
(n)
Reporting Requirements
. The Company, during the period when a prospectus is required to be delivered under the
1933 Act (including in circumstances where such requirement may be satisfied, with the prior consent of the Representatives, by Rule 172 under the 1933 Act Regulations), will file all documents required to be filed with the Commission pursuant to
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act Regulations.
17
SECTION 4.
Payment of Expenses
.
(a)
Expenses
. The Company will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including financial statements and exhibits) as originally filed and of each amendment thereto and the cost of obtaining all securities and bank regulatory approvals, (ii) the
preparation, printing and delivery to the Underwriters of copies of each preliminary prospectus, the Statutory Prospectus, any Issuer-Permitted Free Writing Prospectus and the Prospectus and any amendments or supplements thereto, (iii) the
preparation, issuance and delivery of the certificates for the Securities, (iv) the fees and disbursements of the Company’s counsel, accountants and other advisors, (v) the qualification of the Securities under securities laws in accordance
with the provisions of
Section 3(h)
hereof, (vi) the fees and expenses of the depositary, (vii) the costs and expenses of the Company and the Representatives relating to investor presentations on any “road show” undertaken in
connection with the marketing of the Securities, including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged by the Company or the Representatives in
connection with the road show presentations, travel and lodging expenses of the Representatives and officers of the Company and any such consultants, and the cost of aircraft and other transportation chartered in connection with the road show,
(viii) any fees payable in connection with the rating of the Securities, (ix) the fees and expenses incurred in connection with having the Securities eligible for clearance, settlement and trading through the facilities of DTC and (x) the reasonable
and documented fees and expenses of Norton Rose Fulbright US LLP, counsel to the Underwriters.
(b)
Termination of Agreement
. If
this Agreement is terminated by the Representatives in accordance with the provisions of
Section 5
or
Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their out-of-pocket expenses.
SECTION 5.
Conditions of Underwriters’ Obligations
. The obligations of the several Underwriters hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1
hereof or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the
Company of its covenants and other obligations hereunder, and to the following further conditions:
(a)
Filing of Prospectus
. (i)
Each of the preliminary prospectus, the Statutory Prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) (without reliance on Rule
424(b)(8)) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), and no order preventing or suspending the use of any preliminary prospectus, the
Statutory Prospectus or the Prospectus shall have been issued by the Commission or any other Governmental Entity, (ii) the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with
the Commission within the applicable time periods prescribed in such filings by Rule 433 and (iii) the Registration Statement is effective and no stop order or other order referred to in
Section 3(a)(iv)
hereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened; and all requests for additional information on the part of the Commission shall have been complied with to the Representatives’ satisfaction.
(b)
Opinions of Counsel for the Company
. At the Closing Time, the Representatives shall have received the opinions, dated as of the
Closing Time, from each of Wachtell, Lipton, Rosen & Katz, counsel for the Company, Blackwell, Blackburn & Singer, LLP, Texas counsel for the Company, and
18
Adam D. Nelson, Executive Vice President and General Counsel of the Company, in form and substance satisfactory to counsel for the Underwriters, together with signed or reproduced copies of such
letters for each of the other Underwriters, to the effect set forth in
Exhibit A
,
Exhibit B
and
Exhibit C
hereto, respectively. Such counsel may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public officials.
(c)
Opinion of Counsel for the Underwriters
. At the Closing Time, the Representatives shall have received the opinion, dated as of the
Closing Time, of Norton Rose Fulbright US LLP, counsel for the Underwriters, together with signed or reproduced copies of such letter for each of the other Underwriters with respect to such matters as the Representatives may reasonably require. In
giving such opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than the law of the State of New York and the federal law of the United States, upon the opinions of counsel satisfactory to the
Representatives. Such counsel may also state that, insofar as such opinion involves factual matters, they have relied, to the extent they deem proper, upon certificates of officers of the Company and its subsidiaries and certificates of public
officials.
(d)
Officers’ Certificates
. At the Closing Time, there shall not have been, since the date hereof or since the
respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Effect, and the Representatives shall have received a certificate of the Chief Executive Officer,
President or an Executive Vice President of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated as of the Closing Time, to the effect that (i) there has been no such Material Adverse Effect, (ii) the
representations and warranties in
Section 1
hereof are true and correct with the same force and effect as though expressly made at and as of the Closing Time and (iii) the Company has complied with all agreements and satisfied all conditions
on its part to be performed or satisfied at or prior to the Closing Time.
(e)
Accountants’ Comfort Letters
. At the time of
the execution of this Agreement, the Representatives shall have received from each of Crowe Horwath LLP and Alexander Thompson Arnold PLLC a letter dated such date, in form and substance satisfactory to the Representatives, together with signed or
reproduced copies of such letter for each of the other Underwriters containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and
certain financial information of the Company and ColoEast Bancshares, Inc., respectively, contained in the Registration Statement, the General Disclosure Package and the Prospectus.
(f)
Chief Financial Officer’s Certificate
. At the time of the execution of this Agreement and at the Closing Time, the
Representatives shall have received a certificate signed by the Chief Financial Officer of the Company, in form and substance satisfactory to the Representatives.
(g)
Bring-down Comfort Letter
. At the Closing Time, the Representatives shall have received from each of Crowe Horwath LLP and
Alexander Thompson Arnold PLLC a letter, dated as of the Closing Time, to the effect that it reaffirms the statements made in its letter furnished pursuant to subsection (e) of this Section, except that the specified date referred to shall be a date
not more than three business days prior to the Closing Time.
(h)
DTC
. At the Closing Time, the Securities shall be eligible for
clearance, settlement and trading in book-entry-only form through the facilities of DTC.
19
(i)
Ratings.
At the Closing Time, the Securities will be rated at least BBB- by Kroll Bond
Rating Agency. Subsequent to the execution of this Agreement, there shall not have occurred a downgrading in or withdrawal of the rating assigned to the Securities or any other securities of the Company by any “nationally recognized statistical
rating organization”, as such term is defined in Section 3(a)(62) of the 1934 Act, and no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of the
Securities or any other securities of the Company (other than an announcement with positive implications of a possible upgrading).
(j)
No Legal Impediment to Issuance
. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any Governmental Entity that would, as of the Closing Time, prevent the offer, issuance
or sale of the Securities; and no injunction or order of any federal, state or foreign court shall have been issued that would, as of the Closing Time, prevent the issuance or sale of the Securities.
(k)
Additional Documents
. At the Closing Time, counsel for the Underwriters shall have been furnished with such documents, certificates
and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained, and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representatives and
counsel for the Underwriters.
(l)
Termination of Agreement
. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Closing Time and such termination shall be without liability of any party to any other
party except as provided in
Section 4
and except that
Sections 1
,
6
,
7
,
8
,
11
,
12
,
13
,
14
,
15
and
18
shall survive any such termination and remain in full force and effect.
SECTION 6.
Indemnification
.
(a)
Indemnification of Underwriters
. The Company agrees to indemnify and hold harmless each Underwriter, its partners, officers and
directors, its affiliates, as such term is defined under Rule 405 (each, an “
Affiliate
”), its selling agents and each person, if any, who controls any Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement (or any amendment thereto), including the Rule 430B Information, if any, 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 arising out of any untrue statement or alleged untrue statement of a material fact contained in any preliminary prospectus, the Statutory Prospectus,
any Issuer-Represented Free Writing Prospectus, the General Disclosure Package, the Prospectus or any roadshow that does not constitute an Issuer-Represented Free Writing 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;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or of any claim whatsoever, in each case based upon any such untrue statement or omission, or any such alleged
untrue statement or omission;
provided
that (subject to
Section 6(d)
below) any such settlement is effected with the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred (including the fees and disbursements of counsel chosen by the
Representatives), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or threatened, or any claim whatsoever, in each case based upon any such
untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under (i) or (ii) above;
20
provided
,
however
, that this indemnity agreement shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in the Registration Statement (or any amendment thereto), including the Rule 430B Information, if any, or any preliminary
prospectus, the Statutory Prospectus, any Issuer-Represented Free Writing Prospectus, the General Disclosure Package or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b)
Indemnification of Company, Directors and Officers
. Each Underwriter severally and not jointly agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against any and all
loss, liability, claim, damage and expense described in the indemnity contained in subsection (a) of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430B Information, if any, or in any preliminary prospectus, the Statutory Prospectus, any Issuer-Represented Free Writing Prospectus, the General Disclosure Package or the
Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c)
Actions
against Parties; Notification
. Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action commenced against it in respect of which indemnity may be sought hereunder, but failure to so
notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. In the case of parties indemnified pursuant to
Section 6(a)
above, counsel to the indemnified parties shall be selected by the Representatives, and, in the case of parties indemnified
pursuant to
Section 6(b)
above, counsel to the indemnified parties shall be selected by the Company. An indemnifying party may participate at its own expense in the defense of any such action;
provided
,
however
, that counsel to
the indemnifying party shall not (except with the consent of the indemnified party) also be counsel to the indemnified party. In no event shall the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any
local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any Governmental Entity,
commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this
Section 6
or
Section 7
hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
21
SECTION 7.
Contribution
. If the indemnification provided for in
Section 6
hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, 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) 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, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company, 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 commission received by the Underwriters bears to the aggregate initial offering price of the Securities.
The relative fault of the Company, 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 by the Underwriters and the parties’ relative intent,
knowledge, access to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 7
were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7
. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this
Section 7
shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any Governmental Entity, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.
The
Underwriters’ respective obligations to contribute pursuant to this
Section 7
are several in proportion to the aggregate principal amount of Securities to be purchased set forth opposite their respective names in Schedule A hereto and
not joint.
Notwithstanding the provisions of this
Section 7
, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which such Securities were sold by it to its investors exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act)
shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
22
For purposes of this
Section 7
, each person, if any, who controls an Underwriter within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s directors, officers, Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution as the
Company.
SECTION 8.
Representations, Warranties and Agreements to Survive
. All representations, warranties and agreements
contained in this Agreement or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of any
Underwriter, its Affiliates or selling agents or any person controlling such Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company, and (b) delivery of and payment for the Securities.
SECTION 9.
Termination of Agreement
.
(a)
Termination; General
. The Representatives may terminate this Agreement, by notice to the Company, at any time at or prior to the
Closing Time, (i) if there has been, since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any material adverse change in the financial condition, earnings, or
business affairs of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business, (ii) if there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other calamity or crisis or any change or development involving a prospective change in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities, (iii) if trading in any securities of the
Company has been suspended or materially limited by the Commission or the Nasdaq Global Market, or if trading generally on the Nasdaq Global Market has been suspended or materially limited, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices have been required, by any of said exchanges or by such system or by order of the Commission, the Financial Industry Regulatory Authority, Inc. or any other Governmental Entity, (iv) a material disruption has occurred in
commercial banking or securities or clearance, settlement or trading services in the United States, or (v) if a banking moratorium has been declared by federal, New York or Texas authorities.
(b)
Liabilities
. If this Agreement is terminated pursuant to this Section, such termination shall be without liability of any party to
any other party except as provided in
Section 4
hereof, and provided further that
Sections 1
,
6
,
7
,
8
,
11
,
12
,
13
,
14
,
15
and
18
shall survive such termination and remain
in full force and effect.
SECTION 10.
Default by One or More of the Underwriters
. If one or more of the Underwriters shall fail at
the Closing Time, to purchase the Securities which it or they are obligated to purchase under this Agreement (the “
Defaulted Securities
”), the Representatives shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities
does not exceed 10% of the total number of the Securities to be purchased at the Closing Time, each of the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or
(b) if the
number of Defaulted Securities exceeds 10% of the total number of the Securities to be purchased at the Closing Time, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter.
23
No action taken pursuant to this Section shall relieve any defaulting Underwriter from liability
in respect of its default.
In the event of any such default which does not result in a termination of this Agreement, either the
Representatives or the Company shall have the right to postpone the Closing Time, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or Prospectus or in any
other documents or arrangements. As used herein, the term “Underwriter” includes any person substituted for an Underwriter under this
Section 10
.
SECTION 11.
Notices
. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if
mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters shall be directed to the Representatives at, (a) in the case of Sandler O’Neill, 1251 6
th
Avenue,
New York, NY 10020, attention of General Counsel (facsimile: (212) 466-7797), and (b) in the case of FIG, 1175 Peachtree Street, NE, 100 Colony Square, Suite 2250, Atlanta, GA 30361, attention of Gregory R. Gersack (facsimile: (404) 591-6004), and
with a copy, which shall not constitute notice, to Norton Rose Fulbright US LLP, 2200 Ross Avenue, Suite 3600, Dallas, Texas 75201-7932, attention of Michael G. Keeley, Esq.; and notices to the Company shall be directed to it at its principal
executive offices located at 12700 Park Central Drive, Suite 1700, Dallas, Texas 75251, attention of Chief Executive Officer, with a copy, which shall not constitute notice, to Wachtell, Lipton, Rosen & Katz, 51 West 52
nd
Street, New York, New York 10019-6150, attention of Mark F. Veblen, Esq.
In accordance
with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
SECTION 12.
Parties
. This Agreement shall each inure to the benefit of and be binding upon the Underwriters and the Company and their
respective successors. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any person, firm or corporation, other than the Underwriters and the Company and their respective successors and the Affiliates,
selling agents, officers and directors and controlling persons referred to in
Sections 6
and
7
and their heirs and legal representatives, any legal or equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters and the Company and their respective successors, and said controlling persons and officers
and directors and their heirs and legal representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from any Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 13.
No Fiduciaries
. The Company acknowledges and agrees that (a) the purchase and sale of the Securities pursuant to this
Agreement is an arm’s length commercial transaction between the Company, on the one hand, and the Underwriters, on the other hand, (b) in connection with the offering contemplated hereby and the process leading to such transaction, each
Underwriter is and has been
24
acting solely as a principal and is not the agent or fiduciary of the Company, any of the Company’s subsidiaries, any stockholders, creditors or employees of the Company or any of its
subsidiaries or any other third party, (c) no Underwriter has assumed or will assume an advisory or fiduciary responsibility in favor of the Company or any of its subsidiaries with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any of its subsidiaries on other matters), and no Underwriter has any obligation to the Company or any of its subsidiaries with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the 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 its subsidiaries and (e) 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.
SECTION 14.
GOVERNING LAW
. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THAT WOULD RESULT IN THE APPLICATION OF LAWS OTHER THAN THE
LAWS OF THE STATE OF NEW YORK.
SECTION 15.
Jurisdiction; Waiver of Jury Trial; Venue
. The Company and each Underwriter hereby
expressly and irrevocably (a) submits to the non-exclusive jurisdiction of the federal and state courts sitting in the Borough of Manhattan in the City of New York in any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby, and (b) waives (i) its right to a trial by jury in any legal action or proceeding relating to this Agreement, the transactions contemplated hereby or any course of conduct, course of dealing, statements (whether
verbal or written) or actions of the Underwriters and for any counterclaim related to any of the foregoing and (ii) any objection which it may have or hereafter may have to the laying of venue of any such litigation brought in any such court
referred to above and any claim that any such litigation has been brought in an inconvenient forum.
SECTION 16.
TIME
. TIME SHALL
BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION
17.
Counterparts
. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same Agreement.
SECTION 18.
Effect of Headings
. The Section headings herein are for convenience only and shall not affect the construction hereof.
SECTION 19.
General Provisions
. 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 two or more counterparts, each of which shall be an original, but all of
which together shall constitute one and the same instrument. The exchange of copies of this Agreement and of signature pages by facsimile or other electronic means shall constitute effective execution and delivery of this Agreement by the
parties hereto and may be used in lieu of the original signature pages to this Agreement for all purposes. 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.
25
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a valid and legally binding agreement between the Underwriters and the Company in accordance with its terms.
|
|
|
|
|
Very truly yours,
|
|
|
|
TRIUMPH BANCORP, INC.
|
|
|
|
|
By:
|
|
/s/ Aaron P. Graft
|
|
|
|
Name: Aaron P. Graft
|
|
|
|
Title: President and Chief Executive Officer
|
[
Signature Page to
Underwriting Agreement
]
|
|
|
|
|
CONFIRMED AND ACCEPTED,
as of the
date first above written:
|
|
|
|
SANDLER O’NEILL + PARTNERS, L.P.
|
|
|
|
For itself and as a Representatives of the other Underwriters named in Schedule A hereto
|
|
|
|
|
By:
|
|
/s/ Jennifer Docherty
|
|
|
|
Name: Jennifer Docherty
|
|
|
|
Title: Managing Director
|
|
|
|
FIG PARTNERS, LLC
|
|
|
|
For itself and as a Representatives of the other Underwriters named in Schedule A hereto
|
|
|
|
|
By:
|
|
/s/ Matthew Veneri
|
|
|
|
Name: Matthew Veneri
|
|
|
|
Title: Managing Principal
|
[
Signature Page to
Underwriting Agreement
]
SCHEDULE A
|
|
|
|
|
|
|
Name of Underwriter
|
|
Total
Aggregate
Principal
Amount of
Securities to be
Purchased
|
|
|
Sandler O’Neill + Partners, L.P.
|
|
$
|
45,000,000
|
|
|
FIG Partners, LLC
|
|
$
|
5,000,000
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
50,000,000
|
|
|
|
|
|
|
|
Exhibit 4.1
TRIUMPH BANCORP, INC.
TO
WELLS FARGO BANK, NATIONAL
ASSOCIATION,
as
Trustee
INDENTURE
Dated as of September 30, 2016
SUBORDINATED DEBT SECURITIES
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
1
|
|
|
|
|
|
|
SECTION 101.
|
|
Definitions.
|
|
|
1
|
|
|
SECTION 102.
|
|
Compliance Certificates and Opinions.
|
|
|
8
|
|
|
SECTION 103.
|
|
Form of Documents Delivered to Trustee.
|
|
|
8
|
|
|
SECTION 104.
|
|
Acts of Holders.
|
|
|
9
|
|
|
SECTION 105.
|
|
Notices, etc.
|
|
|
10
|
|
|
SECTION 106.
|
|
Notice to Holders; Waiver.
|
|
|
10
|
|
|
SECTION 107.
|
|
Effect of Headings; Table of Contents; Counterparts.
|
|
|
11
|
|
|
SECTION 108.
|
|
Successors and Assigns.
|
|
|
11
|
|
|
SECTION 109.
|
|
Separability Clause.
|
|
|
11
|
|
|
SECTION 110.
|
|
Benefits of Indenture.
|
|
|
11
|
|
|
SECTION 111.
|
|
No Personal Liability.
|
|
|
11
|
|
|
SECTION 112.
|
|
Governing Law.
|
|
|
11
|
|
|
SECTION 113.
|
|
Legal Holidays.
|
|
|
12
|
|
|
SECTION 114.
|
|
Force Majeure.
|
|
|
12
|
|
|
SECTION 115.
|
|
U.S.A. Patriot Act.
|
|
|
12
|
|
|
|
|
|
ARTICLE TWO SECURITIES FORMS
|
|
|
12
|
|
|
|
|
|
|
SECTION 201.
|
|
Forms of Securities.
|
|
|
12
|
|
|
SECTION 202.
|
|
Form of Trustee’s Certificate of Authentication.
|
|
|
13
|
|
|
SECTION 203.
|
|
Securities Issuable in Global Form.
|
|
|
13
|
|
|
|
|
|
ARTICLE THREE THE SECURITIES
|
|
|
14
|
|
|
|
|
|
|
SECTION 301.
|
|
Amount Unlimited; Issuable in Series.
|
|
|
14
|
|
|
SECTION 302.
|
|
Denominations.
|
|
|
16
|
|
|
SECTION 303.
|
|
Execution, Authentication, Delivery and Dating.
|
|
|
17
|
|
|
SECTION 304.
|
|
Temporary Securities.
|
|
|
18
|
|
|
SECTION 305.
|
|
Registration, Registration of Transfer and Exchange.
|
|
|
20
|
|
|
SECTION 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities.
|
|
|
22
|
|
|
SECTION 307.
|
|
Payment of Interest; Interest Rights Preserved.
|
|
|
23
|
|
|
SECTION 308.
|
|
Persons Deemed Owners.
|
|
|
24
|
|
|
SECTION 309.
|
|
Cancellation.
|
|
|
25
|
|
|
SECTION 310.
|
|
Computation of Interest.
|
|
|
25
|
|
|
SECTION 311.
|
|
CUSIPs
|
|
|
25
|
|
|
|
|
|
ARTICLE FOUR SATISFACTION AND DISCHARGE
|
|
|
26
|
|
|
|
|
|
|
SECTION 401.
|
|
Satisfaction and Discharge of Indenture.
|
|
|
26
|
|
|
SECTION 402.
|
|
Application of Trust Funds.
|
|
|
27
|
|
|
|
|
|
ARTICLE FIVE REMEDIES
|
|
|
27
|
|
|
|
|
|
|
SECTION 501.
|
|
Events of Default.
|
|
|
27
|
|
|
SECTION 502.
|
|
Acceleration of Maturity; Rescission and Annulment.
|
|
|
28
|
|
|
SECTION 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee.
|
|
|
29
|
|
|
SECTION 504.
|
|
Trustee May File Proofs of Claim.
|
|
|
29
|
|
|
SECTION 505.
|
|
Trustee May Enforce Claims Without Possession of Securities or Coupons.
|
|
|
30
|
|
|
SECTION 506.
|
|
Application of Money Collected.
|
|
|
30
|
|
|
SECTION 507.
|
|
Limitation on Suits.
|
|
|
30
|
|
|
SECTION 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
|
|
|
31
|
|
|
SECTION 509.
|
|
Restoration of Rights and Remedies.
|
|
|
31
|
|
|
SECTION 510.
|
|
Rights and Remedies Cumulative.
|
|
|
31
|
|
|
SECTION 511.
|
|
Delay or Omission Not Waiver.
|
|
|
31
|
|
i
|
|
|
|
|
|
|
|
|
SECTION 512.
|
|
Control by Holders of Securities.
|
|
|
31
|
|
|
SECTION 513.
|
|
Waiver of Past Defaults.
|
|
|
32
|
|
|
SECTION 514.
|
|
Waiver of Stay or Extension Laws.
|
|
|
32
|
|
|
SECTION 515.
|
|
Undertaking for Costs.
|
|
|
32
|
|
|
|
|
|
ARTICLE SIX THE TRUSTEE
|
|
|
32
|
|
|
|
|
|
|
SECTION 601.
|
|
Notice of Defaults.
|
|
|
32
|
|
|
SECTION 602.
|
|
Certain Rights of Trustee.
|
|
|
33
|
|
|
SECTION 603.
|
|
Not Responsible for Recitals or Issuance of Securities.
|
|
|
34
|
|
|
SECTION 604.
|
|
May Hold Securities.
|
|
|
35
|
|
|
SECTION 605.
|
|
Money Held in Trust.
|
|
|
35
|
|
|
SECTION 606.
|
|
Compensation and Reimbursement.
|
|
|
35
|
|
|
SECTION 607.
|
|
Corporate Trustee Required; Eligibility.
|
|
|
36
|
|
|
SECTION 608.
|
|
Resignation and Removal; Appointment of Successor.
|
|
|
36
|
|
|
SECTION 609.
|
|
Acceptance of Appointment By Successor.
|
|
|
37
|
|
|
SECTION 610.
|
|
Merger, Conversion, Consolidation or Succession to Business.
|
|
|
38
|
|
|
SECTION 611.
|
|
Appointment of Authenticating Agent.
|
|
|
38
|
|
|
SECTION 612.
|
|
Certain Duties and Responsibilities.
|
|
|
39
|
|
|
SECTION 613.
|
|
Conflicting Interests.
|
|
|
39
|
|
|
SECTION 614.
|
|
Appointment of Co-Trustee.
|
|
|
39
|
|
|
|
|
|
ARTICLE SEVEN HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
40
|
|
|
|
|
|
|
SECTION 701.
|
|
Disclosure of Names and Addresses of Holders.
|
|
|
40
|
|
|
SECTION 702.
|
|
Reports by Trustee.
|
|
|
40
|
|
|
SECTION 703.
|
|
Reports by Company.
|
|
|
40
|
|
|
SECTION 704.
|
|
Company to Furnish Trustee Names and Addresses of Holders.
|
|
|
41
|
|
|
|
|
|
ARTICLE EIGHT CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
|
|
|
41
|
|
|
|
|
|
|
SECTION 801.
|
|
Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain Conditions.
|
|
|
41
|
|
|
SECTION 802.
|
|
Rights and Duties of Successor Corporation.
|
|
|
42
|
|
|
SECTION 803.
|
|
Officers’ Certificate and Opinion of Counsel.
|
|
|
42
|
|
|
|
|
|
ARTICLE NINE SUPPLEMENTAL INDENTURES
|
|
|
42
|
|
|
|
|
|
|
SECTION 901.
|
|
Supplemental Indentures without Consent of Holders.
|
|
|
42
|
|
|
SECTION 902.
|
|
Supplemental Indentures with Consent of Holders.
|
|
|
43
|
|
|
SECTION 903.
|
|
Execution of Supplemental Indentures.
|
|
|
44
|
|
|
SECTION 904.
|
|
Effect of Supplemental Indentures.
|
|
|
44
|
|
|
SECTION 905.
|
|
Conformity with Trust Indenture Act.
|
|
|
45
|
|
|
SECTION 906.
|
|
Reference in Securities to Supplemental Indentures.
|
|
|
45
|
|
|
SECTION 907.
|
|
Notice of Supplemental Indentures.
|
|
|
45
|
|
|
|
|
|
ARTICLE TEN COVENANTS
|
|
|
45
|
|
|
|
|
|
|
SECTION 1001.
|
|
Payment of Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
|
|
|
45
|
|
|
SECTION 1002.
|
|
Maintenance of Office or Agency.
|
|
|
45
|
|
|
SECTION 1003.
|
|
Money for Securities Payments to Be Held in Trust.
|
|
|
46
|
|
|
SECTION 1004.
|
|
[Reserved].
|
|
|
47
|
|
|
SECTION 1005.
|
|
Existence.
|
|
|
47
|
|
|
SECTION 1006.
|
|
Maintenance of Properties.
|
|
|
48
|
|
|
SECTION 1007.
|
|
Payment of Taxes and Other Claims.
|
|
|
48
|
|
|
SECTION 1008.
|
|
Statement as to Compliance.
|
|
|
48
|
|
|
SECTION 1009.
|
|
Additional Amounts.
|
|
|
48
|
|
|
SECTION 1010.
|
|
Waiver of Certain Covenants.
|
|
|
49
|
|
|
|
|
|
ARTICLE ELEVEN REDEMPTION OF SECURITIES
|
|
|
49
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 1101.
|
|
Applicability of Article.
|
|
|
49
|
|
|
SECTION 1102.
|
|
Election to Redeem; Notice to Trustee.
|
|
|
49
|
|
|
SECTION 1103.
|
|
Selection by Trustee of Securities to Be Redeemed.
|
|
|
49
|
|
|
SECTION 1104.
|
|
Notice of Redemption.
|
|
|
50
|
|
|
SECTION 1105.
|
|
Deposit of Redemption Price.
|
|
|
51
|
|
|
SECTION 1106.
|
|
Securities Payable on Redemption Date.
|
|
|
51
|
|
|
SECTION 1107.
|
|
Securities Redeemed in Part.
|
|
|
52
|
|
|
|
|
|
ARTICLE TWELVE SINKING FUNDS
|
|
|
52
|
|
|
|
|
|
|
SECTION 1201.
|
|
Applicability of Article.
|
|
|
52
|
|
|
SECTION 1202.
|
|
Satisfaction of Sinking Fund Payments with Securities.
|
|
|
52
|
|
|
SECTION 1203.
|
|
Redemption of Securities for Sinking Fund.
|
|
|
53
|
|
|
|
|
|
ARTICLE THIRTEEN [RESERVED]
|
|
|
53
|
|
|
|
|
|
ARTICLE FOURTEEN DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
53
|
|
|
|
|
|
|
SECTION 1401.
|
|
Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
|
|
|
53
|
|
|
SECTION 1402.
|
|
Defeasance and Discharge.
|
|
|
53
|
|
|
SECTION 1403.
|
|
Covenant Defeasance.
|
|
|
54
|
|
|
SECTION 1404.
|
|
Conditions to Defeasance or Covenant Defeasance.
|
|
|
54
|
|
|
SECTION 1405.
|
|
Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
|
|
|
55
|
|
|
|
|
|
ARTICLE FIFTEEN MEETINGS OF HOLDERS OF SECURITIES
|
|
|
56
|
|
|
|
|
|
|
SECTION 1501.
|
|
Purposes for Which Meetings May Be Called.
|
|
|
56
|
|
|
SECTION 1502.
|
|
Call, Notice and Place of Meetings.
|
|
|
56
|
|
|
SECTION 1503.
|
|
Persons Entitled to Vote at Meetings.
|
|
|
57
|
|
|
SECTION 1504.
|
|
Quorum; Action.
|
|
|
57
|
|
|
SECTION 1505.
|
|
Determination of Voting Rights; Conduct and Adjournment of Meetings.
|
|
|
58
|
|
|
SECTION 1506.
|
|
Counting Votes and Recording Action of Meetings.
|
|
|
58
|
|
|
SECTION 1507.
|
|
Evidence of Action Taken by Holders.
|
|
|
58
|
|
|
SECTION 1508.
|
|
Proof of Execution of Instruments.
|
|
|
59
|
|
|
|
|
|
ARTICLE SIXTEEN SUBORDINATION
|
|
|
59
|
|
|
|
|
|
|
SECTION 1601.
|
|
Agreement to Subordinate.
|
|
|
59
|
|
|
SECTION 1602.
|
|
Liquidation; Dissolution; Bankruptcy.
|
|
|
59
|
|
|
SECTION 1603.
|
|
Default on Senior Debt.
|
|
|
59
|
|
|
SECTION 1604.
|
|
Acceleration of Securities.
|
|
|
60
|
|
|
SECTION 1605.
|
|
When Distribution Must Be Paid Over.
|
|
|
60
|
|
|
SECTION 1606.
|
|
Notice by Company.
|
|
|
60
|
|
|
SECTION 1607.
|
|
Subrogation.
|
|
|
60
|
|
|
SECTION 1608.
|
|
Relative Rights.
|
|
|
60
|
|
|
SECTION 1609.
|
|
Subordination May Not Be Impaired By Company.
|
|
|
60
|
|
|
SECTION 1610.
|
|
Distribution or Notice to Representative.
|
|
|
60
|
|
|
SECTION 1611.
|
|
Rights of Trustee and Paying Agent.
|
|
|
61
|
|
iii
TRIUMPH BANCORP, INC.
Reconciliation and tie between Trust Indenture Act of 1939, as amended (the “
TIA
”), and Indenture, dated as of
September 30, 2016:
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
Section 310(a)(1)
|
|
607
|
|
(a)(2)
|
|
607
|
|
(b)
|
|
608, 613
|
|
Section 312(a)
|
|
704
|
|
(c)
|
|
701
|
|
Section 313(a)
|
|
702
|
|
Section 314(a)
|
|
703
|
|
(a)(4)
|
|
1008
|
|
(c)(1)
|
|
102
|
|
(c)(2)
|
|
102
|
|
(e)
|
|
102
|
|
Section 315(b)
|
|
601, 602
|
|
Section 316(a)(last sentence)
|
|
101 (“Outstanding”)
|
|
(a)(1)(A)
|
|
502, 512
|
|
(a)(1)(B)
|
|
513
|
|
(b)
|
|
508
|
|
Section 317(a)(1)
|
|
503
|
|
(a)(2)
|
|
504
|
|
Section 318(a)
|
|
112
|
|
(c)
|
|
112
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA, which provides that the provisions of Sections 310 to and including 317 of the TIA are a
part of and govern every qualified indenture, whether or not physically contained therein.
iv
INDENTURE
INDENTURE, dated as of September 30, 2016, between TRIUMPH BANCORP, INC., a Texas corporation (the “Company”), having its principal
office at 12700 Park Central Drive, Suite 1700, Dallas, Texas 75251, and Wells Fargo Bank, National Association, a national banking association organized under the laws of the United States, as Trustee hereunder (the “Trustee”), having its
Corporate Trust Office at 750 N. Saint Paul Place, Suite 1750, Dallas, Texas 75201 MAC T9263-170, Attn: Corporate, Municipal & Escrow Services, Administrator-Triumph Bancorp, Inc.
RECITALS OF THE COMPANY
The
Company deems it necessary to issue from time to time for its lawful purposes subordinated debt securities (the “Securities”) evidencing its unsecured and subordinated indebtedness, and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities, unlimited as to aggregate principal amount, to bear interest at the rates or formulas, to mature at such times and to have such other provisions as shall be fixed
therefor as hereinafter provided.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein that are defined in the TIA, either directly or by reference therein, have the meanings assigned to them
therein, and the terms “cash transaction” and “self-liquidating paper,” as used in TIA Section 311, shall have the meanings assigned to them in the rules of the Commission adopted under the TIA;
(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with accounting principles generally
accepted in the United States; and
(4) the words “herein,” “hereof” and “hereunder” and other words of
similar import refer to this Indenture as a whole and not to any particular Article, Section or other subdivision.
Certain terms, used
principally in Article Three, Article Five, Article Six and Article Ten, are defined in those Articles. In addition, the following terms shall have the indicated respective meanings:
“Act” has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts that are required by a Security, under circumstances specified therein, to be paid
by the Company in respect of certain taxes imposed on certain Holders and that are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such specified Person. For the purposes of this definition, “control” when used with respect to any specified Person means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise; and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to Section 611.
“Bankruptcy Law” has the meaning specified in Section 501.
“Bearer Security” means a Security that is payable to bearer.
“Board of Directors” means either (i) the Board of Directors of the Company, the executive committee or any other committee or
director of that board duly authorized to act for it in respect hereof, or (ii) one or more duly authorized officers of the Company to whom the Board of Directors of the Company or a committee thereof has delegated the authority to act with
respect to the matters contemplated by this Indenture.
“Board Resolution” means (i) a copy of a resolution certified by
the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors or a committee thereof, and to be in full force and effect on the date of such certification, and delivered to the Trustee or (ii) a
certificate signed by the authorized officer or officers of the Company to whom the Board of Directors of the Company or a committee thereof has delegated its authority (as described in the definition of Board of Directors), and in each case,
delivered to the Trustee.
“Business Day,” when used with respect to any Place of Payment or any other particular location
referred to in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities pursuant to Section 301, any day, other than a Saturday or Sunday, that is neither a legal holiday nor a day on which banking
institutions in that Place of Payment or particular location are authorized or required by law, regulation or executive order to close.
“Clearstream” means Clearstream Banking, societe anonyme Luxembourg.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Exchange Act, or, if
at any time after execution of this instrument such Commission is not existing and performing the duties now assigned to it under the TIA, then the body performing such duties on such date.
“Common Depository” has the meaning specified in Section 304(b).
“Company” means the Person named as the “Company” in the first paragraph of this Indenture until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation.
“Company Request” and “Company Order” mean, respectively, a written request or order signed in the name of the Company by
the President or a Vice President of the Company, and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Conversion Event” means the cessation of use of (i) a Foreign Currency (other than as otherwise provided with respect to a
Security pursuant to Section 301) as provided by the government of the country that issued such currency and for the settlement of transactions by a central bank or other public institutions of or within the international banking community, or
(ii) the ECU, both within the European Monetary System and for the settlement of transactions by public in situations of or within the European Community, or (iii) any currency unit (or composite currency) for the purposes for which it was
established.
“Corporate Trust Office” means the office of the Trustee at which, at any particular time, its corporate trust
business shall be principally administered, which office at the date hereof is located at 750 N. St. Paul Place, Suite 1750, Dallas, Texas 75201 MAC T9623-1701, Attn: Corporate, Municipal & Escrow Services, Administrator-Triumph Bancorp,
Inc.
2
“Corporation” includes corporations, associations, companies and business trusts.
“Coupon” means any interest coupon appertaining to a Bearer Security.
“Custodian” has the meaning set forth in Section 501.
“Debt” means the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under or
in respect of the following indebtedness of the Company for money borrowed, whether any such indebtedness exists as of the date of the Indenture or is created, incurred, assumed or guaranteed after such date:
(i) any debt (a) for money borrowed, (b) evidenced by a bond, note, debenture, or similar instrument (including purchase money
obligations) given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise, but shall not include any account payable or other obligation created or assumed in the ordinary
course of business in connection with the obtaining of materials or services, or (c) that is a direct or indirect obligation that arises as a result of banker’s acceptances or bank letters of credit issued to secure obligations of the
Company, or to secure the payment of revenue bonds issued for the benefit of the Company, whether contingent or otherwise;
(ii) any debt
of others described in the preceding clause (i) that the Company has guaranteed or for which it is otherwise liable;
(iii) the
obligation of the Company, as lessee under any lease of property that is reflected on the Company’s balance sheet as a capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described in any of the preceding
clauses (i), (ii), and (iii); provided, however, that, in computing indebtedness of the Company, there shall be excluded any particular indebtedness if, upon or prior to the maturity thereof, there shall have been deposited with a depository in
trust money (or evidence of indebtedness if permitted by the instrument creating such indebtedness) in the necessary amount to pay, redeem or satisfy such indebtedness as it becomes due, and the amount so deposited shall not be included in any
computation of the assets of the Company.
“Defaulted Interest” has the meaning specified in Section 307.
“Dollar” or “$” means a dollar or other equivalent unit in such coin or currency of the United States of America as at the
time shall be legal tender for payment of public and private debts.
“DTC” means The Depository Trust Company.
“Euroclear” means Euroclear Bank or its successor as operator of the Euroclear System.
“Event of Default” has the meaning specified in Section 501.
“Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder by the
Commission.
“Foreign Currency” means any currency, currency unit or composite currency issued by the government of one or more
countries other than the United States of America or by any recognized confederation or association of such governments.
3
“GAAP” means generally accepted accounting principles as used in the United States
applied on a consistent basis as in effect from time to time; provided that solely for purposes of any calculation required by the financial covenants contained herein, “GAAP” shall mean generally accepted accounting principles as used in
the United States on the date hereof, applied on a consistent basis.
“Government Obligations” means securities that are
(i) direct obligations of the United States of America or the government that issued the Foreign Currency in which the Securities of a particular series are payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United States of America or such government that issued the Foreign Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government, which, in either case, are not callable or redeemable at the option of the issuer 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 any such Government Obligation held by such custodian for the account of
the holder of a depository receipt, provided that (except as required by law) such custodian is not authorized to make any deduction from the amount payable to the holder of such 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 the Government Obligation evidenced by such depository receipt.
“Holder” means, in the case of a Registered Security, the Person in whose name a Security is registered in the Security Register
and, in the case of a Bearer Security, the bearer thereof and, when used with respect to any coupon, shall mean the bearer thereof.
“Indenture” means this instrument as originally executed or as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable provisions hereof, and shall include the terms of particular series of Securities established as contemplated by Section 301; provided, however, that, if at any time more
than one Person is acting as Trustee under this instrument, “Indenture” shall mean, with respect to any one or more series of Securities for which such Person is Trustee, this instrument as originally executed or as it may from time to
time be supplemented or amended by one or more indentures supplemental hereto entered into pursuant to the applicable provisions hereof and shall include the terms of the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any provisions or terms that relate solely to other series of Securities for which such Person is not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more indentures supplemental hereto executed and delivered after such Person had become such Trustee but to which such Person, as such Trustee, was not a party.
“Indexed Security” means a Security the terms of which provide that the principal amount thereof payable at Stated Maturity may be
more or less than the principal face amount thereof at original issuance.
“Interest” when used with respect to an Original
Issue Discount Security that by its terms bears interest only after Maturity, shall mean interest payable after Maturity, and, when used with respect to a Security that provides for the payment of Additional Amounts pursuant to Section 1009,
includes such Additional Amounts.
“Interest Payment Date” means, when used with respect to any Security, the Stated Maturity of
an installment of interest on such Security.
“Make-Whole Amount” means the amount, if any, in addition to principal that is
required by a Security, under the terms and conditions specified therein or as otherwise specified as contemplated by Section 301, to be paid by the Company to the Holder thereof in connection with any optional redemption or accelerated payment
of such Security.
“Maturity” means, when used with respect to any Security, the date on which the principal of such Security or
an installment of principal becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment, repurchase or otherwise.
4
“Officers’ Certificate” means a certificate signed by the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel for the Company.
“Original Issue Discount Security” means any Security that provides for an amount less than the principal amount thereof to be due
and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding,” when used
with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or redemption or repayment money in the necessary amount has been theretofore
deposited with the Trustee or any Paying Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining
thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture or other provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except solely to the extent provided in Sections 1402 or 1403, as applicable, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
(iv) Securities that have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been authenticated and delivered pursuant to this Indenture, other than any such Securities in respect of which there shall have been presented to the Trustee proof satisfactory to the
Trustee that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company; and
(v) Securities converted or exchanged into other securities or property (including securities of other issuers, provided that such securities
are registered under Section 12 of the Exchange Act and such issuer is then eligible to use Form S-3 (or any successor form) for a primary offering of its securities) of the Company pursuant to or in accordance with this Indenture if the terms
of such Securities provide for convertibility or exchange pursuant to Section 301;
provided
,
however
, that in determining whether the Holders of the requisite principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose of making the calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that would be (or shall have been declared
to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof pursuant to Section 502, (ii) the principal amount of any Security denominated in a Foreign Currency that may be counted
in making such determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the Dollar equivalent, determined pursuant to Section 301 as of the date such Security is originally issued by the Company, of
the principal amount (or, in the case of an Original Issue Discount Security, the Dollar equivalent as of such date of original issuance of the amount determined as provided in clause (i) above) of such Security, (iii) the principal amount
of any Indexed Security that may be counted in making such determination or calculation and that shall be deemed outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise
provided with respect to such Indexed Security pursuant to Section 301, and (iv) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Securities that a
Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Securities so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or of such other obligor.
5
“Paying Agent” means any Person authorized by the Company to pay the principal of (and
premium or Make-Whole Amount, if any) or interest on any Securities, or coupons on behalf of the Company, or if no such Person is authorized, the Company.
“Person” means any individual, corporation, partnership, limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment” means, when
used with respect to the Securities of or within any series, the place or places where the principal of (and premium or Make-Whole Amount, if any) and interest on such Securities are payable as specified as contemplated by Sections 301 and 1002.
“Predecessor Security” of any particular Security means every previous Security evidencing all or a portion of the same debt as
that evidenced by such particular Security; and, for the purposes of this definition, any Security authenticated and delivered under Section 306 in exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or a Security to
which a mutilated, destroyed, lost or stolen coupon appertains shall be deemed to evidence the same debt as the mutilated, destroyed, lost or stolen Security or the Security to which the mutilated, destroyed, lost or stolen coupon appertains.
“Redemption Date” means, when used with respect to any security to be redeemed in whole or in part, the date fixed for such
redemption by or pursuant to this Indenture.
“Redemption Price” means, when used with respect to any Security to be redeemed,
the price at which it is to be redeemed pursuant to this Indenture.
“Registered Security” means any Security that is registered
in the Security Register.
“Regular Record Date” for the installment of interest payable on any Interest Payment Date on the
Registered Securities of or within any series means the date specified for that purpose as contemplated by Section 301, whether or not a Business Day.
“Repayment Date” means, when used with respect to any Security to be repaid, the date fixed for such repayment by or pursuant to
this Indenture.
“Repayment Price” means, when used with respect to any Security to be repaid or purchased, the price at which
it is to be repaid pursuant to this Indenture.
“Representative” means the indenture trustee or other trustee, agent or
representative for an issue of Senior Debt.
“Responsible Officer” means any vice president, assistant vice president, assistant
treasurer, assistant secretary or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of this Indenture, and
also, with respect to a particular matter, any other officer to whom such matter is referred because of such officer’s knowledge of and familiarity with the particular subject.
“Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder by the
Commission.
“Security” has the meaning stated in the first recital of this Indenture and, more particularly, means any Security
or Securities authenticated and delivered under this Indenture;
provided
,
however
, that if at any time there is more than one Person acting as Trustee under this Indenture, “Securities” with respect to the Indenture as to
which such Person is Trustee shall have the meaning stated in the first recital of this Indenture and shall more particularly mean Securities authenticated and delivered under this Indenture, exclusive, however, of Securities of or within any series
as to which such Person is not Trustee.
6
“Security Register” and “Security Registrar” have the respective meanings
specified in Section 305.
“Senior Debt” means the principal, premium, if any, unpaid interest (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification
obligations, and all other amounts payable under or in respect of the following indebtedness of the Company for money borrowed, whether any such indebtedness exists as of the date of the Indenture or is created, incurred, assumed or guaranteed after
such date:
(i) any debt (a) for money borrowed by the Company, or (b) evidenced by a bond, note, debenture, or similar
instrument (including purchase money obligations) given in connection with the acquisition of any business, property or assets, whether by purchase, merger, consolidation or otherwise, but shall not include any account payable or other obligation
created or assumed in the ordinary course of business in connection with the obtaining of materials or services, or (c) which is a direct or indirect obligation which arises as a result of banker’s acceptances or bank letters of credit
issued to secure obligations of the Company, or to secure the payment of revenue bonds issued for the benefit of the Company whether contingent or otherwise;
(ii) any debt of others described in the preceding clause (i) which the Company has guaranteed or for which it is otherwise liable;
(iii) the obligation of the Company as lessee under any lease of property which is reflected on the Company’s balance sheet as a
capitalized lease; and
(iv) any deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described
in any of the preceding clauses (i), (ii) and (iii);
provided, however, that, in determining the indebtedness of the Company, there
shall be excluded any particular indebtedness if, upon or prior to the maturity thereof, there shall have been deposited with a depository in trust money (or evidence of indebtedness if permitted by the instrument creating such indebtedness) in the
necessary amount to pay, redeem or satisfy such indebtedness as it becomes due, and the amount so deposited shall not be included in any determination of the indebtedness of the Company provided, further, that in determining the indebtedness of the
Company hereunder, there shall be excluded (1) any such indebtedness, obligation or liability referred to in clauses (i) through (iv) above as to which, in the instrument creating or evidencing the same or pursuant to which the same
is outstanding, it is provided that such indebtedness, obligation or liability is not superior in right of payment to the Securities, or ranks pari passu with the Securities, (2) any such indebtedness, obligation or liability which is
subordinated to indebtedness of the Company to substantially the same extent as or to a greater extent than the Securities are subordinated, (3) any indebtedness to a subsidiary of the Company and (4) the Securities. There is no limit on
the amount of Senior Debt that the Company may incur.
“Special Record Date” for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee pursuant to Section 307.
“Stated Maturity”
means, when used with respect to any Security or any installment of principal thereof or interest thereon, the date specified in such Security or a coupon representing such installment of interest as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
“Subsidiary” means a corporation or a partnership or
a limited liability company a majority of the outstanding Voting Stock or partnership or membership interests, as the case may be, of which is owned or controlled, directly or indirectly, by the Company or by one or more of its other Subsidiaries.
7
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as
amended and as in force at the date as of which this Indenture was executed, except as provided in Section 905.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” as used with respect to the Securities of or within any series shall mean only the Trustee with
respect to the Securities of that series.
“United States” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, the United States of America (including the states and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction.
“United States person” means, unless otherwise specified with respect to any Securities pursuant to Section 301, an individual
who is a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or any state or the District of Columbia or an estate or trust the income of which is
subject to United States federal income taxation regardless of its source.
“Voting Stock” means stock having voting power for
the election of directors, or trustees, as the case may be.
“Yield to Maturity” means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent predetermination of interest on such Security) and as set forth in such Security in accordance with generally accepted United States bond yield computation principles.
SECTION 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any, provided for in this Indenture (including covenants, compliance with which constitute conditions precedent) relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with, except that in the case of any such application or request as to which the furnishing of such
documents is specifically required by any provision of this Indenture relating to such particular application or request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture (excluding certificates
delivered pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate or opinion has read
such condition or covenant and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement
that, in the opinion of each such individual, he has made such examination or investigation as is necessary to enable him to express an informed opinion as to whether or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
8
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to
legal matters, upon an Opinion of Counsel, or a certificate or representations by counsel, unless such officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or representations with respect to the matters
upon which his certificate or opinion is based are erroneous. Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer
or officers of the Company stating that the information as to such factual matters is in the possession of the Company, unless such counsel knows that the certificate or opinion or representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
SECTION 104. Acts of
Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by Holders of the Outstanding Securities of all series or one or more series, as the case may be, may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agents
duly appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Holders of Securities
of such series may, alternatively, be embodied in and evidenced by the record of Holders of Securities of such series voting in favor thereof, whether in person or by proxies duly appointed in writing, at any meeting of Holders of Securities of such
series duly called and held in accordance with the provisions of Article Fifteen, or a combination of such instruments and any such record. Except as herein otherwise expressly provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is hereby expressly required, to the Company. Such instrument or instruments and any such record (and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the “Act” of the Holders signing such instrument or instruments or so voting at any such meeting. Proof of execution of any such instrument or of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to Section 612) conclusive in favor of the Trustee and the Company and any agent of the Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner provided in Section 1506.
(b) The fact and date of the
execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient
proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other reasonable manner that the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register or by a certificate of the Security Registrar.
(d) The ownership of Bearer Securities may be proved by the production of such Bearer Securities or by a certificate executed, as depository,
by any trust company, bank, banker or other depository, wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned such person had on deposit with such depository, or
exhibited to it, the Bearer Securities therein described; or such facts may be proved by the certificate or affidavit of the Person holding such Bearer Securities, if such certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security continues until (1) another certificate or affidavit bearing a later date issued in
9
respect of the same Bearer Security is produced, or (2) such Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered in exchange for
a Registered Security, or (4) such Bearer Security is no longer Outstanding. The ownership of Bearer Securities may also be proved in any other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of Registered Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board Resolution, fix in advance a record date for the determination of Holders entitled to give such request, demand, authorization, direction, notice, consent, waiver or
other Act, but the Company shall have no obligation to do so. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in or pursuant to such Board Resolution, which shall be a date not earlier than the date 30
days prior to the first solicitation of Holders generally in connection therewith and not later than the date such solicitation is completed. If such a record date is fixed, such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders of record at the close of business on such record date shall be deemed to be Holders for the purposes of determining whether Holders of the requisite proportion of
Outstanding Securities have authorized or agreed or consented to such request, demand, authorization, direction, notice, consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as of such record date; provided
that no such authorization, agreement or consent by the Holders on such record date shall be deemed effective unless it shall become effective pursuant to the provisions of this Indenture not later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice, consent, waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in respect of anything done, omitted or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent, any Authenticating Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
SECTION 105. Notices, etc.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient for
every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention: Corporate, Municipal & Escrow Services, Administrator-Triumph Bancorp, Inc., or
(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first class postage prepaid, to the Company addressed to it at the address of its principal office specified in the first paragraph of this Indenture or at any other address previously furnished in writing to the Trustee by
the Company.
SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice of any event to Holders of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by such event, at his address as it appears in the Security Register (or in the case of global
Securities, delivered to DTC electronically), not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice. In any case where notice to Holders of Registered Securities is given by mail or
electronically as prescribed above, neither the failure to mail or send such notice, nor any defect in any notice so mailed or sent, to any particular Holder shall affect the sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities given as provided herein. Any notice mailed or sent to a Holder in the manner herein prescribed shall be conclusively deemed to have been received by such Holder, whether or
not such Holder actually receives such notice.
10
If by reason of the suspension of or irregularities in regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail or electronically as prescribed above, then such notification to Holders of Registered Securities by other means as determined by the Company shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Any request, demand, authorization, direction, notice, consent or waiver
required or permitted under this Indenture shall be in the English language, except that any published notice may be in an official language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. Effect of Headings; Table of Contents; Counterparts.
The Article and Section headings herein and the Table of Contents are for convenience only and shall not affect the construction hereof. This
Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same Indenture. Notwithstanding the foregoing, the exchange of
copies of this Indenture and of signature pages by facsimile or PDF (e-mail) transmission shall constitute effective execution and delivery of this Indenture as to the parties hereto and may be used in lieu of the original Indenture and signature
pages for all purposes.
SECTION 108. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
SECTION 109. Separability Clause.
In case any provision in this Indenture or in any Security or coupon 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 110. Benefits of Indenture.
Nothing in this Indenture or in the Securities or coupons appertaining thereto, express or implied, shall give to any Person, other than
the parties hereto, any Security Registrar, any Paying Agent, any Authenticating Agent and their successors hereunder (and, with respect to Article Seventeen, the holders of Senior Debt) or the Holders any benefit or any legal or equitable right,
remedy or claim under this Indenture.
SECTION 111. No Personal Liability.
No recourse under or upon any obligation, covenant or agreement contained in this Indenture, in any Security or coupon appertaining thereto,
or because of any indebtedness evidenced thereby, shall be had against any promoter, as such, or against any past, present or future shareholder, officer or director, as such, of the Company or of any successor, either directly or through the
Company or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly waived and released by the
acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities.
SECTION 112.
Governing Law.
This Indenture and the Securities and coupons shall be governed by and construed in accordance with the laws of the State
of New York. This Indenture is subject to the provisions of the TIA that are required to be part of
11
this Indenture and shall, to the extent applicable, be governed by such provisions. The parties to this Indenture each hereby irrevocably submits to the non-exclusive jurisdiction of any New York
State or federal court sitting in the Borough of Manhattan in The City of New York in any action or proceeding arising out of or relating to the Securities or this Indenture, and all such parties hereby irrevocably agree that all claims in respect
of such action or proceeding may be heard and determined in such New York State or federal court and hereby irrevocably waive, to the fullest extent that they may legally do so, the defense of an inconvenient forum to the maintenance of such action
or proceeding. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security or the last date on which a Holder has the right to convert or exchange a Security at a particular conversion or exchange price shall not be a Business Day at any Place of Payment, then (notwithstanding any other provision of this Indenture
or any Security or coupon other than a provision in the Securities of any series that specifically states that such provision shall apply in lieu hereof), payment of interest or any Additional Amounts or principal (and premium or Make-Whole Amount,
if any) need not be made at such Place of Payment on such date, conversion or exchange need not be made at such Place of Payment on such date, but may be made on the next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or at the Stated Maturity or Maturity or on such last day for conversion or exchange, provided that no interest shall accrue on the amount
so payable for the period from and after such Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or Maturity or on such last day for conversion or exchange, as the case may be.
SECTION 114. Force Majeure.
In no event shall the Trustee (in any capacity hereunder) 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 (in any capacity hereunder) 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 115. 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 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.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities.
The Registered Securities, if any, of each series and the Bearer Securities, if any, and related coupons of each series, shall be in
substantially the forms as shall be established in or pursuant to one or more indentures supplemental hereto or Board Resolutions, shall have such appropriate insertions, omissions, substitutions and other variations as are required or permitted by
this Indenture or any indenture supplemental hereto, and may have such
12
letters, numbers or other marks of identification or designation and such legends or endorsements placed thereon as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities may be listed, or to conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed, lithographed or engraved or produced by any combination of these methods on a steel
engraved border or steel engraved borders or may be produced in any other manner, all as determined by the officers of the Company executing such Securities or coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. Form of Trustee’s Certificate of Authentication.
Subject to Section 611, the Trustee’s certificate of authentication shall be in substantially the following form:
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
|
|
|
|
Wells Fargo Bank, National Association, as Trustee
|
|
Date:
|
|
|
|
By
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
SECTION 203. Securities Issuable in Global Form.
If Securities of or within a series are issuable in global form, as specified as contemplated by Section 301, then, notwithstanding
clause (8) of Section 301 and the provisions of Section 302, any such Security shall represent such of the Outstanding Securities of such series as shall be specified therein and may provide that it shall represent the aggregate
amount of Outstanding Securities of such series from time to time endorsed thereon and that the aggregate amount of Outstanding Securities of such series represented thereby may from time to time be increased or decreased to reflect exchanges,
maturities or redemptions. Any endorsement of a Security in global form to reflect the amount, or any increase or decrease in the amount, of Outstanding Securities represented thereby shall be made by the Trustee in such manner and upon written
instruction given by such Person or Persons as shall be specified therein or in the Company Order to be delivered to the Trustee pursuant to Section 303 or 304. Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form in the manner and upon written instructions given by the Person or Persons specified therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not comply with Section 102.
The provisions of the last sentence of Section 303 shall apply to any Security represented by a Security in global form if such Security
was never issued and sold by the Company and the Company delivers to the Trustee the Security in global form together with written instructions (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) with
regard to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by the last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of
and any premium or Make-Whole Amount and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal amount of Outstanding Securities represented by a permanent global Security (i) in the case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a permanent global Security in bearer form, the Holder listed on such permanent global Security in bearer form.
13
Notwithstanding any other provision of this Indenture, so long as a series of Securities is a
Global Security, the parties hereto will be bound at all times by the procedures of the applicable depositary with respect to such series.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities that may be authenticated and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant to one or more Board Resolutions, or indentures
supplemental hereto, prior to the issuance of Securities of any series, any or all of the following, as applicable (each of which (except for the matters set forth in clauses (1), (2) and (15) below), if so provided, may be determined from
time to time by the Company with respect to unissued Securities of or within the series when issued from time to time):
(1) the title of
the Securities of or within the series (that shall distinguish the Securities of such series from all other series of Securities);
(2)
any limit upon the aggregate principal amount of the Securities of or within the series that may be authenticated and delivered under this Indenture (except for Securities authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities of or within the series pursuant to Section 304, 305, 306, 906 or 1107);
(3) the date or dates,
or the method by which such date or dates will be determined, on which the principal of the Securities of or within the series shall be payable and the amount of principal payable thereon;
(4) the rate or rates (that may be fixed or variable) at which the Securities of or within the series shall bear interest, if any, or the
method by which such rate or rates shall be determined, the date or dates from which such interest shall accrue or the method by which such date or dates shall be determined, the Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered Security on any Interest Payment Date, or the method by which such date shall be determined, and the basis upon which interest shall be calculated if other than that of a
360-day year consisting of twelve 30-day months;
(5) the place or places where the principal of (and premium or Make-Whole Amount, if
any), interest, if any, on, and Additional Amounts, if any, payable in respect of, Securities of or within the series shall be payable, any Registered Securities of or within the series may be surrendered for registration of transfer, exchange or
conversion and notices or demands to or upon the Company in respect of the Securities of or within the series and this Indenture may be served;
(6) the period or periods within which, the price or prices (including the premium or Make-Whole Amount, if any) at which, the currency or
currencies, currency unit or units or composite currency or currencies in which and other terms and conditions upon which Securities of or within the series may be redeemed in whole or in part, at the option of the Company, if the Company is to have
the option;
(7) the obligation, if any, of the Company to redeem, repay or purchase Securities of or within the series pursuant to any
sinking fund or analogous provision or at the option of a Holder thereof, and the period or periods within which or the date or dates on which, the price or prices at which, the currency or currencies, currency unit or units or composite currency or
currencies in which, and other terms and conditions upon which Securities of or within the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such obligation;
14
(8) if other than denominations of $1,000 and any integral multiple thereof, the denominations in
which any Registered Securities of or within the series shall be issuable and, if other than the denomination of $5,000, the denomination or denominations in which any Bearer Securities of or within the series shall be issuable;
(9) if other than the Trustee, the identity of each Security Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the principal amount of Securities of or within the series that shall be
payable upon declaration of acceleration of the maturity thereof pursuant to Section 502 or, if applicable, the portion of the principal amount of Securities of or within the series that is convertible in accordance with the provisions of this
Indenture, or the method by which such portion shall be determined;
(11) if other than Dollars, the Foreign Currency or Currencies in
which payment of the principal of (and premium or Make-Whole Amount, if any) or interest or Additional Amounts, if any, on the Securities of or within the series shall be payable or in which the Securities of or within the series shall be
denominated;
(12) whether the amount of payments of principal of (and premium or Make-Whole Amount, if any) or interest, if any, on the
Securities of or within the series may be determined with reference to an index, formula or other method (which index, formula or method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities,
equity indices or other indices), and the manner in which such amounts shall be determined;
(13) whether the principal of (and premium or
Make-Whole Amount, if any) or interest or Additional Amounts, if any, on the Securities of or within the series are to be payable, at the election of the Company or a Holder thereof, in a currency or currencies, currency unit or units or composite
currency or currencies other than that in which such Securities are denominated or stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for, determining the exchange rate between the currency or currencies, currency unit or units or composite currency or currencies in which such Securities are denominated or stated to be payable and the
currency or currencies, currency unit or units or composite currency or currencies in which such Securities are to be so payable;
(14)
provisions, if any, granting special rights to the Holders of Securities of or within the series upon the occurrence of such events as may be specified;
(15) any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to Securities of or
within the series, whether or not such Events of Default or covenants are consistent with the Events of Default or covenants set forth herein;
(16) whether Securities of or within the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer Securities and the terms upon which Bearer Securities of or within the series may be exchanged for Registered Securities of or within the series and vice versa (if permitted
by applicable laws and regulations), whether any Securities of or within the series are to be issuable initially in temporary global form and whether any Securities of or within the series are to be issuable in permanent global form (with or without
coupons) and, if so, whether beneficial owners of interests in any such permanent global Security may exchange such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under which
any such exchanges may occur, if other than in the manner provided in Section 305, and, if Registered Securities of or within the series are to be issuable as a global Security, the identity of the depository for such series;
(17) the date as of which any Bearer Securities of or within the series and any temporary global Security representing Outstanding Securities
of or within the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
15
(18) the Person to whom any interest on any Registered Security of the series shall be payable,
if other than the Person in whose name that Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest, the manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon presentation and surrender of the coupons appertaining thereto as they severally mature, and the extent to which, or the manner in which, any interest payable on a temporary global
Security on an Interest Payment Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if
any, of Sections 1402 and/or 1403 to the Securities of or within the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in definitive form (whether upon original issue or upon exchange of a temporary
Security of such series) only upon receipt of certain certificates or other documents or satisfaction of other conditions, then the form and/or terms of such certificates, documents or conditions;
(21) whether and under what circumstances the Company will pay Additional Amounts as contemplated by Section 1009 on the Securities of or
within the series to any Holder who is not a United States person (including any modification to the definition of such term) in respect of any tax, assessment or governmental charge and, if so, whether the Company will have the option to redeem
such Securities rather than pay such Additional Amounts (and the terms of any such option);
(22) the obligation, if any, of the Company
to permit the Securities of such series to be converted into or exchanged for Common Stock of the Company or other securities or property of the Company and the terms and conditions upon which such conversion or exchange shall be effected
(including, without limitation, the initial conversion price or rate, the conversion or exchange period, any adjustment of the applicable conversion or exchange price or rate and any requirements relative to the reservation of such shares for
purposes of conversion or exchange);
(23) if convertible or exchangeable, any applicable limitations on the ownership or transferability
of the securities or property into which such Securities are convertible or exchangeable; and
(24) any other terms of the series (which
terms shall not be inconsistent with the provisions of this Indenture except as permitted by Section 905).
All Securities of any one
series and the coupons appertaining to any Bearer Securities of such series, if any, shall be substantially identical except, in the case of Registered or Bearer Securities issued in global form, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution or in any indenture supplemental hereto. All Securities of any one series need not be issued at the same time and, unless otherwise provided, a series may be reopened, without the consent of the
Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established by
action taken pursuant to one or more Board Resolutions, a copy of an appropriate record of such action(s) shall be certified by the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to the delivery of the
Company Order for authentication and delivery of such Securities.
SECTION 302. Denominations.
The Securities of each series shall be issuable in such denominations as shall be specified as contemplated by Section 301. With respect
to Securities of any series denominated in Dollars, in the absence of any such provisions with respect to the Securities of any series, the Registered Securities of such series, other than Registered Securities issued in global form (which may be of
any denomination), shall be issuable in minimum denominations of $1,000 and any integral multiple thereof.
16
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities and any coupons appertaining thereto shall be executed on behalf of the Company by its President or a Vice President. The
signature of any of these officers on the Securities and any coupons may be manual or facsimile signatures of the present or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons appertaining thereto bearing the manual or facsimile signatures of individuals who were at any time the proper officers
of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and delivery of this Indenture, the Company may deliver Securities
of any series, together with any coupon appertaining thereto, executed by the Company to the Trustee for authentication, together with a Company Order for the authentication and delivery of such Securities, and the Trustee in accordance with the
Company Order shall authenticate and deliver such Securities;
provided
,
however
, that, in connection with its original issuance, no Bearer Security shall be mailed or otherwise delivered by the Company to any location in the United
States; and
provided further
that, unless otherwise specified with respect to any series of Securities pursuant to Section 301 a Bearer Security may be delivered in connection with its original issuance only if the Person entitled to
receive such Bearer Security shall have furnished a certificate to Euroclear or Clearstream, as the case may be, in the form set forth in Exhibit A-1 to this Indenture or such other certificate as may be specified with respect to any series of
Securities pursuant to Section 301, dated no earlier than 15 days prior to the earlier of the date on which such Bearer Security is delivered and the date on which any temporary Security first becomes exchangeable for such Bearer Security in
accordance with the terms of such temporary Security and this Indenture.
If all of the Securities of any series are not to be
issued at one time and if the Board Resolution or supplemental indenture establishing such series shall so permit, such Company Order may set forth procedures for the issuance of such Securities and determining the terms of particular Securities of
such series, such as interest rate or formula, maturity date, date of issuance and date from which interest shall accrue. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall receive, and (subject to Section 612 and TIA Sections 315(a) through 315(d)) shall be fully protected in conclusively relying upon:
(i) an Opinion of Counsel complying with Section 102 and stating that:
(a) the form or forms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture and that any conditions precedent to the authorization and delivery of the Securities have been satisfied;
(b) the terms of such Securities and any coupons have been, or will have been upon compliance with such procedures as may be specified
therein, established in conformity with the provisions of this Indenture; and
(c) such Securities, together with any coupons appertaining
thereto, when completed pursuant to such procedures as may be specified therein, and executed and delivered by the Company to the Trustee for authentication in accordance with this Indenture, authenticated and delivered by the Trustee in accordance
with this Indenture and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, will constitute legal, valid and binding obligations of the Company, enforceable in accordance with their terms, subject
to applicable bankruptcy, insolvency, reorganization and other similar laws of general applicability relating to or affecting the enforcement of creditors’ rights generally and to general equitable principles and to such other matters as may be
specified therein; and
(ii) an Officers’ Certificate complying with Section 102 and stating that all conditions precedent
provided for in this Indenture relating to the issuance of such Securities have been, or will have been upon compliance with such procedures as may be specified therein, complied with and that, to the best of the knowledge of the signers of such
certificate, no Event of Default with respect to such Securities shall have occurred and be continuing.
17
If the authentication and delivery relates to a new series of Securities created by an indenture
supplemental hereto, the Opinion of Counsel shall, in addition to opinions (a) thru (c) described in paragraph (i) above, also state that all conditions precedent to the execution of the supplemental indenture and the authentication
and delivery of the new series of Securities have been complied with and that such supplemental indenture and new series of Securities are the legal, valid and binding obligation of the Company enforceable against the Company, and any Guarantor as
applicable, in accordance with their terms.
Notwithstanding the provisions of Section 301 and of the preceding paragraph, if all the
Securities of any series are not to be issued at one time, it shall not be necessary to deliver an Opinion of Counsel or an Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time of issuance of each Security of
such series, but such order, opinion and certificate, with appropriate modifications to cover such future issuances, shall be delivered at or before the time of issuance of the first Security of such series.
The Trustee shall not be required to authenticate such Securities if the issue of such Securities pursuant to this Indenture will affect the
Trustee’s own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise in a manner that is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication and each Bearer Security shall be dated as of the date specified as
contemplated by Section 301.
No Security or coupon appertaining thereto shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security or the Security to which such coupon appertains a certificate of authentication substantially in the form provided for herein duly executed by the Trustee by manual signature
of an authorized officer, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 309 together with a written statement (which need not comply with Section 102 and need not be accompanied by an Opinion of Counsel) stating that such Security has never been issued or sold by the Company, for all purposes of this
Indenture such Security shall be deemed never to have been authenticated and delivered hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 304. Temporary Securities.
(a) Pending the preparation of definitive Securities of any series, the Company may execute, and (subject to the fourth and fifth paragraphs
of Section 303) upon Company Order the Trustee shall authenticate and deliver, temporary Securities that are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized denomination, substantially of the tenor of
the definitive Securities in lieu of which they are issued, in registered form, or, if authorized, in bearer form with one or more coupons or without coupons, and with such appropriate insertions, omissions, substitutions and other variations as the
officers of the Company executing such Securities may determine, as conclusively evidenced by their execution of such Securities. In the case of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in accordance with Section 304(b) or as
otherwise provided in or pursuant to a Board Resolution), if temporary Securities of any series are issued, the Company will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series upon surrender of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any non-matured coupons appertaining thereto), the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of definitive Securities of the same series of authorized denominations;
provided
,
18
however
, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered Security; and
provided further
that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged, the temporary Securities of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided as contemplated in Section 301, this
Section 304(b) shall govern the exchange of temporary Securities issued in global form other than through the facilities of DTC. If any such temporary Security is issued in global form, then such temporary global Security shall, unless
otherwise provided therein, be delivered to the London, England office of a depository or common depository (the “
Common Depository
”), for the benefit of Euroclear and Clearstream.
Without unnecessary delay but in any event not later than the date specified in, or determined pursuant to the terms of, any such temporary
global Security (the “
Exchange Date
”), the Company shall deliver to the Trustee definitive Securities, in an aggregate principal amount equal to the principal amount of such temporary global Security, executed by the Company. On or
after the Exchange Date, such temporary global Security shall be surrendered by the Common Depository to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for each portion of such temporary global Security, an equal aggregate principal amount of definitive Securities of or within the same series of authorized denominations and
of like tenor as the portion of such temporary global Security to be exchanged. The definitive Securities to be delivered in exchange for any such temporary global Security shall be in bearer form, registered form, permanent global bearer form or
permanent global registered form, or any combination thereof, as specified as contemplated by Section 301, and, if any combination thereof is so specified, as requested by the beneficial owner thereof;
provided
,
however
, that,
unless otherwise specified in such temporary global Security, upon such presentation by the Common Depository, such temporary global Security is accompanied by a certificate dated the Exchange Date or a subsequent date and signed by Euroclear as to
the portion of such temporary global Security, if any, held for its account then to be exchanged and a certificate dated the Exchange Date or a subsequent date and signed by Euroclear or Clearstream as to the portion of such temporary global
Security, if any, held for its account then to be exchanged, each in the form set forth in Exhibit A-2 to this Indenture or in such other form as may be established pursuant to Section 301; and
provided further
that definitive Bearer
Securities shall be delivered in exchange for a portion of a temporary global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same series and of like tenor following the Exchange Date when the account holder instructs Euroclear or Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, as the case may be, a certificate in the form set forth in Exhibit A-1 to this Indenture (or in such other form as may be established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices of Euroclear or Clearstream, the Trustee, any Authenticating Agent appointed for such series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the beneficial owners of such temporary global Security, except that a Person receiving definitive Securities must bear the cost of insurance, postage, transportation and
the like unless such Person takes delivery of such definitive Securities in person at the offices of Euroclear or Clearstream. Definitive Securities in bearer form to be delivered in exchange for any portion of a temporary global Security shall be
delivered by the Company only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any
series shall in all respects be entitled to the same benefits under this Indenture as definitive Securities of the same series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary global Security on an Interest Payment Date for Securities of such series occurring prior to the applicable Exchange Date shall be payable to Euroclear or Clearstream on such Interest Payment Date
upon delivery by Euroclear or Clearstream to the Trustee of a certificate or certificates in the form set forth in Exhibit A-2 to this Indenture (or in such other forms as may be established pursuant to Section 301), for credit without further
interest on or after such Interest Payment Date to the respective accounts of Persons who are the beneficial owners of such temporary global Security on such Interest Payment Date and who have each delivered to Euroclear or Clearstream, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest Payment
19
Date occurring prior to such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to this paragraph shall satisfy the certification requirements of the preceding two paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of the temporary global Security with respect to which such certification was made will be exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as otherwise provided in this paragraph, no payments of principal or interest owing with respect to
a beneficial interest in a temporary global Security will be made unless and until such interest in such temporary global Security shall have been exchanged for an interest in a definitive Security. Any interest so received by Euroclear or
Clearstream and not paid as herein provided shall be returned to the Trustee prior to the expiration of two years after such Interest Payment Date in order to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office or in any office or agency of the Company in a Place of Payment a register
for each series of Securities (the registers maintained in such office or in any such office or agency of the Company in a Place of Payment being herein sometimes referred to collectively as the “
Security Register
”) in which,
subject to such reasonable regulations as it or the Security Registrar may prescribe, the Company shall provide for the registration of Registered Securities and of transfers of Registered Securities. The Security Register shall be in written form
or any other form capable of being converted into written form within a reasonable time. The Trustee, at its Corporate Trust Office, is hereby initially appointed “Security Registrar” for the purpose of registering Registered Securities
and transfers of Registered Securities on such Security Register as herein provided. In the event that the Trustee shall cease to be Security Registrar, it shall have the right to examine the Security Register at all reasonable times and to require
that a copy of the Security Register in written form be delivered to it from time to time as reasonably requested. Subject to the provisions of this Section 305, upon surrender for registration of transfer of any Registered Security of any
series at any office or agency of the Company in a Place of Payment for that series, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated transferee or transferees, one or more new Registered
Securities of the same series, of any authorized denominations and of a like aggregate principal amount, bearing a number not contemporaneously outstanding, and containing identical terms and provisions.
Subject to the provisions of this Section 305, at the option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series, of any authorized denomination or denominations and of a like aggregate principal amount, containing identical terms and provisions, upon surrender of the Registered Securities to be exchanged at any
such office or agency. Whenever any such Registered Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Registered Securities that the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as contemplated by Section 301, Bearer Securities may not be issued in exchange for Registered Securities.
If (but only if) permitted as contemplated by Section 301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Paying Agent any such missing coupon in respect of
which such a payment shall have been made, such Holder shall be entitled to receive the amount of such payment;
provided
,
however
, that, except as otherwise provided in Section 1002, interest represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer Security of any series is surrendered at any such office or agency in a permitted
exchange for a Registered Security of the same series and like tenor after the close of business
20
at such office or agency on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date, or (ii) any Special Record
Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture. Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Securities that the holder making the exchange is entitled to receive.
Notwithstanding the
foregoing, except as otherwise specified as contemplated by Section 301, any permanent global Security shall be exchangeable only as provided in this paragraph. If the depository for any permanent global Security is DTC, then, unless the terms
of such global Security expressly permit such global Security to be exchanged in whole or in part for definitive Securities, a global Security may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to DTC, or
to a successor to DTC for such global Security selected or approved by the Company or to a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling or unable to continue as depository for the applicable global
Security or Securities or if at any time DTC ceases to be a clearing agency registered under the Exchange Act if so required by applicable law or regulation, the Company shall appoint a successor depository with respect to such global Security or
Securities. If (x) a successor depository for such global Security or Securities is not appointed by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness, inability or ineligibility,
(y) an Event of Default has occurred and is continuing and the beneficial owners representing a majority in principal amount of the applicable series of Securities represented by such global Security or Securities advise DTC to cease acting as
depository for such global Security or Securities or (z) the Company, in its sole discretion, determines at any time that all Outstanding Securities (but not less than all) of any series issued or issuable in the form of one or more global
Securities shall no longer be represented by such global Security or Securities (
provided
,
however
, the Company may not make such determination during the 40-day restricted period provided by Regulation S under the Securities Act or
during any other similar period during which the Securities must be held in global form as may be required by the Securities Act), then the Company shall execute, and the Trustee shall authenticate and deliver definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal amount of such global Security or Securities. If any beneficial owner of an interest in a permanent global Security is otherwise entitled to exchange
such an interest for Securities of such series and of like tenor and principal amount of another authorized form and denomination, as specified as contemplated by Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any event not later than the earliest date on which such interest may be so exchanged, the Company shall execute, and the Trustee shall authenticate and deliver definitive
Securities in aggregate principal amount equal to the principal amount of such beneficial owner’s interest in such permanent global Security. On or after the earliest date on which such interests may be so exchanged, such permanent global
Security shall be surrendered for exchange by DTC or such other depository as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s agent for such purpose;
provided
,
however
, that no such
exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security for which exchange is requested may be among those selected
for redemption; and
provided further
that no Bearer Security delivered in exchange for a portion of a permanent global Security shall be mailed or otherwise delivered to any location in the United States. If a Registered Security is issued in
exchange for any portion of a permanent global Security after the close of business at the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable on such Interest Payment Date or proposed date for payment, as the case may be, only to the Person to
whom interest in respect of such portion of such permanent global Security is payable in accordance with the provisions of this Indenture.
21
All Securities issued upon any registration of transfer or exchange of Securities shall be the
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange or redemption shall (if so required by the
Company or the Security Registrar) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Securities, other than exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to issue, register the transfer of or exchange any Security if such
Security may be among those selected for redemption during a period beginning at the opening of business 15 days before selection of the Securities to be redeemed under Section 1103 and ending at the close of business on (A) if such
Securities are issuable only as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if such Securities are issuable as Bearer Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and there is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security to be redeemed in part, the portion thereof not to be redeemed, or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer
Security may be exchanged for a Registered Security of that series and like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption, or (iv) to issue or to register the transfer or exchange of any
Security that has been surrendered for repayment, except the portion, if any, of such Security not to be so repaid.
SECTION 306.
Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated coupon appertaining to it is
surrendered to the Trustee or the Company, together with such security or indemnity as may be required by the Company or the Trustee to save each of them or any agent of either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series and principal amount, containing identical terms and provisions and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence to their
satisfaction of the destruction, loss or theft of any Security or coupon, and (ii) such security or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of actual notice to the
Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and principal amount, containing identical terms and provisions and
bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, with coupons corresponding to coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security to which
such destroyed, lost or stolen coupon appertains, pay such Security or coupon;
provided
,
however
, that payment of principal of (and premium or Make-Whole Amount, if any), any interest on and any Additional Amounts with respect to
Bearer Securities shall, except as otherwise provided in Section 1002, be payable only at an office or agency located outside the United States and, unless otherwise specified as contemplated by Section 301, any interest on Bearer
Securities shall be payable only upon presentation and surrender of the coupons appertaining thereto.
22
Upon the issuance of any new Security under this Section, the Company may require the payment of
a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation of the Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or
the destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies
with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of
Interest; Interest Rights Preserved.
Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 301, interest on any Registered Security that is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest at the office or agency of the Company maintained for such purpose pursuant to Section 1002;
provided
,
however
, that each installment
of interest on any Registered Security may at the Company’s option be paid by (i) mailing a check for such interest, payable to or upon the written order of the Person entitled thereto pursuant to Section 308, to the address of such
Person as it appears on the Security Register or (ii) transfer to an account maintained by the payee located inside the United States.
Unless otherwise provided as contemplated by Section 301 with respect to the Securities of any series, payment of interest may be made,
in the case of a Bearer Security, by transfer to an account maintained by the payee with a bank located outside the United States.
Unless
otherwise provided as contemplated by Section 301, every permanent global Security will provide that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear and/or Clearstream, as the case may be, with respect to
that portion of such permanent global Security held for its account by DTC, Euroclear or Clearstream, as the case may be, for the purpose of permitting such party to credit the interest received by it in respect of such permanent global Security to
the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a Registered
Security of such series after the close of business (at an office or agency in a Place of Payment for such series) on any Regular Record Date and before the opening of business (at such office or agency) on the next succeeding Interest Payment Date,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect of the Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise
specified with respect to a series of Securities in accordance with the provisions of Section 301, any interest on any Registered Security of any series that is payable, but is not punctually paid or duly provided for, on any Interest Payment
Date (herein called “
Defaulted Interest
”) shall forthwith cease to be payable to the registered Holder thereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any
Defaulted Interest to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered at the close
23
of business on a Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on each Registered Security of such series and the date of the proposed payment (which shall not be less than 20 days after such notice is received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series) equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest and such money when deposited to be held in trust for the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date (herein called a “
Special Record Date
”) for the payment of such Defaulted Interest which shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid (or to the extent permitted by applicable procedures or regulations, electronically
delivered), to each Holder of Registered Securities of such series at such Holder’s address as it appears in the Security Register not less than 10 days prior to such Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall be paid to the Persons in whose names the Registered Securities of such series (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer be payable pursuant to the following clause (2). In case a Bearer Security of any series is surrendered at the office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close of business at such office or agency on any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of Defaulted
Interest, such Bearer Security shall be surrendered without the coupon relating to such proposed date of payment and Defaulted Interest will not be payable on such proposed date of payment in respect of the Registered Security issued in exchange for
such Bearer Security, but will be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be required by such exchange, if, after written notice given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this
Section and Section 305, each Security delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
Subject to the provisions of Section 1402 and except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, in the case of any Security that is converted or exchanged after any Regular Record Date and on or prior to the next succeeding Interest Payment Date (other than any Security, the
principal of (or premium, if any, on) which shall become due and payable, whether at a Stated Maturity or by declaration of acceleration, call for redemption, or otherwise, prior to such Interest Payment Date), interest whose Stated Maturity is on
such Interest Payment Date shall be payable on such Interest Payment Date notwithstanding such conversion or exchange, and such interest (whether or not punctually paid or duly provided for) shall be paid to the Person in whose name that Security
(or one or more Predecessor Securities) is registered at the close of business on such Regular Record Date. Except as otherwise expressly provided in the immediately preceding sentence, in the case of any Security which is converted or exchanged,
interest whose Stated Maturity is after the date of conversion or exchange of such Security shall not be payable.
SECTION 308.
Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such Registered Security is registered as the owner of such Security for the purpose of receiving payment of principal of (and premium or Make-Whole Amount, if any), and (subject
to Sections 305 and 307) interest on, such Registered Security and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
24
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The
Company, the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer Security and the Holder of any coupon as the absolute owner of such Security or coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue, and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership interests of a Security in global form or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy or other authorization furnished by any depository, as a Holder, with respect to such global Security or impair, as between such depository and owners of beneficial
interests in such global Security, the operation of customary practices governing the exercise of the rights of such depository (or its nominee) as Holder of such global Security.
SECTION 309. Cancellation.
All Securities and coupons surrendered for payment, redemption, repayment, registration of transfer or exchange or for credit against any
sinking fund payment shall, if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall be promptly
canceled by it. The Company may at any time deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder that the Company may have acquired in any manner whatsoever, and may deliver to the Trustee (or to
any other Person for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder that the Company has not issued and sold, and all Securities so delivered shall be promptly canceled by the Trustee. If the Company
shall so acquire any of the Securities, however, such acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by such Securities unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities canceled as provided in this Section, except as expressly permitted by this Indenture. Cancelled Securities and coupons held by the Trustee shall be destroyed by the
Trustee in accordance with its customary procedures.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 with respect to Securities of any series, interest on the Securities of each
series shall be computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 311. CUSIPs
The Company in issuing the Securities may use CUSIP numbers (or any other identifying control number, if then generally in use) and, if so,
the Trustee shall use CUSIP numbers in notices, including notices of redemption as a convenience to Holders, provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the
Securities or as contained in such notice.
25
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect with respect to any series of Securities specified in such Company
Request (except as to any surviving rights of registration of transfer or exchange of Securities of such series herein expressly provided for and any right to receive Additional Amounts, as provided in Section 1009), and the Trustee, upon
receipt of a Company Order, and at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series when
(1) either
(A) all Securities
of such series theretofore authenticated and delivered and all coupons, if any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in Section 305, (ii) Securities and coupons of such series that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 306,
(iii) coupons appertaining to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender has been waived as provided in Section 1106, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within one year, or
(iii) if redeemable at the option of the Company, are to be called for redemption within one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i),
(ii) or (iii) above, has irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose an amount in the currency or currencies, currency unit or units or composite currency or currencies in which
the Securities of such series are payable, sufficient to pay and discharge the entire indebtedness on such Securities and such coupons (as determined by the Company) not theretofore delivered to the Trustee for cancellation, for principal (and
premium or Make-Whole Amount, if any) and interest, and any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities that have become due and payable) or the Stated Maturity or Redemption Date, as the case may
be;
(2) The Company has paid or caused to be paid all or other sums payable hereunder by the Company; and
(3) The Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee and any predecessor Trustee
under Section 606, the obligations of the Company to any Authenticating Agent under Section 611 and, if money shall have been deposited with and held by the Trustee pursuant to subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003, shall survive.
26
In the event that there are Securities of two or more series outstanding hereunder, the Trustee
shall be required to execute an instrument acknowledging satisfaction and discharge of this Indenture only if requested to do so with respect to Securities of a particular series as to which it is Trustee and if the other conditions thereto are met.
SECTION 402. Application of Trust Funds.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 shall
be held in trust and applied by it, in accordance with the provisions of the Securities, the coupons and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and premium or Make-Whole Amount, if any), and any interest and Additional Amounts for whose payment such money has been deposited with or received by the Trustee, but such
money need not be segregated from other funds except to the extent required by law. Money deposited pursuant to Section 401 not in violation of this Indenture shall not be subject to claims of holders of Senior Debt under Article Seventeen.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default.
Subject to any modifications, additions or deletions relating to any series of Securities as contemplated pursuant to Section 301,
“Event of Default,” wherever used herein with respect to any particular series of Securities, means any one of the following events (whatever the reason for such Event of Default and whether or not it shall be voluntary or involuntary or
be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon or any Additional Amounts payable in respect of any Security of or within that series or of
any coupon appertaining thereto, when such interest, Additional Amounts or coupon becomes due and payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of that series when it becomes due
and payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as due by the terms of any Security of
that series; or
(4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture with respect to
any Security of that series (other than (i) a covenant or agreement included in this Indenture solely for the benefit of a series of Securities other than such series or (ii) a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and continuance of such default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the Outstanding Securities of that series a written notice specifying such default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or
(5) the Company pursuant to or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it in an involuntary case,
(C) consents to the appointment of a Custodian of it or for all or substantially all of its property, or
27
(D) makes a general assignment for the benefit of its creditors; or
(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case,
(B) appoints a Custodian of the Company for all or substantially all of its property, or
(C) orders the liquidation of the Company, and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to Securities of that series.
As used in this Section 501, the term “Bankruptcy Law” means Title 11, U.S. Code or any similar Federal or state law for the
relief of debtors and the term “Custodian” means any receiver, trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default under clause (5) or (6) of Section 501 with respect to Securities of any series at the time Outstanding
occurs and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in aggregate principal amount of the Outstanding Securities of each such affected series (voting as a single class) may declare the principal (or,
if any Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal as may be specified in the terms thereof) of, and the Make-Whole Amount, if any, on, all the Securities of that series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders), and upon any such declaration such principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree
for payment of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient to
pay in the currency, currency unit or composite currency in which the Securities of such series is payable (except as otherwise specified pursuant to Section 301 for the Securities of such series):
(A) all overdue installments of interest on and any Additional Amounts payable in respect of all Outstanding Securities of that series and any
related coupons;
(B) the principal of (and premium or Make-Whole Amount, if any, on) any Outstanding Securities of that series which have
become due otherwise than by such declaration of acceleration and interest thereon at the rate or rates borne by or provided for in such Securities;
(C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest and any Additional Amounts at the
rate or rates borne by or provided for in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel; and
(2) all Events of Default with respect to
Securities of that series, other than the nonpayment of the principal of (or premium or Make-Whole Amount, if any) or interest on Securities of that series that have become due solely by such declaration of acceleration, have been cured or waived as
provided in Section 513.
No such rescission shall affect any subsequent default or impair any right consequent thereon.
28
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest or Additional Amounts, if any, on any Security of any series and any related
coupon when such interest or Additional Amount becomes due and payable and such default continues for a period of 30 days, or
(2) default
is made in the payment of the principal of (or premium or Make-Whole Amount, if any, on) any Security of any series at its Maturity,
then the Company
will, upon demand of the Trustee, pay to the Trustee, for the benefit of the Holders of such Securities of such series and coupons, the whole amount then due and payable on such Securities and coupons for principal (and premium or Make-Whole Amount,
if any) and interest and Additional Amounts, with interest upon any overdue principal (and premium or Make-Whole Amount, if any) and, to the extent that payment of such interest shall be legally enforceable, upon any overdue installments of interest
or Additional Amounts, if any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding for the collection of the sums so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon such Securities of such series and collect the moneys adjudged or decreed to be payable in the manner provided by law out of the property of the Company or any other obligor upon such
Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the Holders of Securities of such series and any related coupons by such appropriate judicial proceedings as the Trustee shall deem most effectual to
protect and enforce any such rights, whether for the specific enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the Securities or the property of the Company or of such other obligor or their creditors, the Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made any demand on the Company for the payment of overdue principal, premium or Make-Whole Amount, if any, or
interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole
amount, or such lesser amount as may be provided for in the Securities of such series, of principal (and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, owing and unpaid in respect of the Securities and to file
such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or deliverable on any
such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official) in any such
judicial proceeding is hereby authorized by each Holder of Securities of such series and coupons to make such payments to
29
the Trustee, and in the event that the Trustee shall consent to the making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee and any predecessor Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee hereunder.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities or Coupons.
All rights of action and claims under this Indenture or any of the Securities or coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of the Securities and coupons in respect of which
such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or premium or Make-Whole Amount, if any) or interest and any Additional Amounts, upon presentation of the Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the
Trustee (acting in any capacity hereunder) and any predecessor Trustee hereunder,
SECOND: To the payment of the amounts then due and
unpaid upon the Securities and coupons for principal (and premium or Make-Whole Amount, if any) and interest and any Additional Amounts payable, in respect of which or for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the aggregate amounts due and payable on such Securities and coupons for principal (and premium or Make-Whole Amount, if any), interest and Additional Amounts, respectively, and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits.
No Holder of any Security of any series or any related coupon shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder
has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of that series;
(2)
the Holders of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee security and indemnity satisfactory to the Trustee against the costs, expenses and
liabilities to be incurred in compliance with such request;
30
(4) the Trustee for 60 days after its receipt of such notice, request and offer of security and
indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of the Outstanding Securities of that series; it being understood and intended that no one or more of such Holders shall have any right in any manner whatever by
virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference over any other of such Holders or to enforce any right
under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all such Holders.
SECTION 508.
Unconditional Right of Holders to Receive Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium or Make-Whole Amount, if any) and (subject to Sections 305 and 307) interest on, and any Additional Amounts in respect of, such Security or payment of such coupon on the respective
due dates expressed in such Security or coupon (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and
such proceeding has been discontinued or abandoned for any reason, or has been determined adversely to the Trustee or to such Holder, then and in every such case the Company, the Trustee and the Holders of Securities and coupons shall, subject to
any determination in such proceeding, be restored severally and respectively to their former positions hereunder and thereafter all rights and remedies of the Trustee and the Holders shall continue as though no such proceeding has been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to the Holders of Securities or coupons is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the
extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not
Waiver.
No delay or omission of the Trustee or of any Holder of any Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or any acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee with respect to the Securities of such series,
provided
that
(1) such direction shall not be in conflict with any rule of law or with this Indenture,
31
(2) the Trustee may take any other action deemed proper by the Trustee that is not inconsistent
with such direction, and
(3) the Trustee need not take any action that might involve it in personal liability or be unduly prejudicial to
the Holders of Securities of such series not joining therein (but the Trustee shall have no obligation as to the determination of such undue prejudice).
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the Outstanding Securities of any series may on behalf of the Holders of all
the Securities of such series and any related coupons consent to the waiver of any past default hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or Additional Amounts payable in respect of
any Security of such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under Article Nine cannot
be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
Upon any such waiver, such
default shall cease to exist, and any Event of Default arising therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other default or Event of Default or impair any
right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, which may affect the covenants or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
SECTION 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any action taken or omitted by it as Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’ fees, against any party litigant in such suit having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by any Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or Additional Amounts payable with respect to any Security
on or after the respective Stated Maturities expressed in such Security (or in the case of redemption, on or after the Redemption Date).
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder with respect to the Securities of any series, the Trustee shall transmit in the
manner and to the extent provided in TIA Section 313(c), notice of such default hereunder actually known to a Responsible Officer of the Trustee, unless such default shall have been cured or
32
waived;
provided
,
however
, that, except in the case of a default in the payment of the principal of (or premium or Make-Whole Amount, if any) or interest on or any Additional
Amounts with respect to any Security of such series, or in the payment of any sinking fund installment with respect to the Securities of such series, the Trustee shall be protected in withholding such notice if and so long as the Trustee in good
faith determines that the withholding of such notice is in the interests of the Holders of the Securities and coupons of such series; and
provided further
that in the case of any default or breach of the character specified in
Section 501(4) with respect to the Securities and coupons of such series, no such notice to Holders shall be given until at least 60 days after the occurrence thereof. For the purpose of this Section, the term “default” means any
event that is, or after notice or lapse of time or both would become, an Event of Default with respect to the Securities of such series.
SECTION 602. Certain Rights of Trustee.
Subject to the provisions of TIA Section 315(a) through 315(d):
(1) the Trustee shall perform only such duties as are expressly undertaken by it to perform under this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee;
(2) the Trustee may conclusively rely and shall be fully protected in
acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(3) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (other than delivery of any Security, together with any coupons appertaining thereto, to the Trustee for authentication and delivery pursuant to Section 303 that shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(4)
whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of willful misconduct as determined by a court of competent jurisdiction in a final non-appealable order on its part, rely upon an Officers’ Certificate;
(5) the Trustee may consult with counsel and as a condition to the taking, suffering or omission of any action hereunder may demand an Opinion
of Counsel, and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(6) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the costs, expenses and
liabilities that might be incurred by it in compliance with such request or direction;
(7) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(8) the Trustee may execute any of the trusts or powers hereunder or perform
any duties hereunder either directly or by or through agents, attorneys, custodians or nominees and the Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee appointed with due
care by it hereunder;
33
(9) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith
and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Indenture;
provided
,
however
, that the Trustee’s conduct does not constitute willful misconduct or gross
negligence;
(10) The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the Trustee against such risk or liability is
not reasonably assured to it;
(11) in no event shall the Trustee be responsible or liable for special, punitive, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action;
(12) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a default is received by the Trustee at the Corporate Trust Office, and such notice references the Securities and this Indenture;
(13) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; and
(14) the Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture;
(15) the Trustee shall not be liable or responsible for any
action or inaction of DTC, Euroclear, Clearstream, the Common Depositary or any other clearinghouse or depositary;
(16) the Trustee shall
not be liable or responsible for any action or inaction of any Paying Agent, Authenticating Agent, co-Trustee or Security Registrar (unless the Trustee is acting in such capacities as applicable, subject to the terms hereof);
(17) the Trustee may accept as conclusive evidence of any fact or the correctness of any calculation and shall be fully protected in relying
upon the Officer’s Certificate provided to it by the Company;
(18) the Trustee shall have no obligation to undertake any calculation
hereunder or have any liability for any calculation performed in connection herewith or the transactions contemplated hereunder;
(19) the
permissive right of the Trustee to do things enumerated in the Indenture shall not be construed as a duty;
(20) under no circumstances
shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities; and
(21) the Trustee shall not be
required to give any bond or surety in respect of the performance of its powers and duties hereunder.
SECTION 603. Not Responsible
for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustee’s certificate of
authentication, and in any coupons shall be taken as the statements of the Company, and neither the Trustee nor any Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities or coupons, except that the Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its obligations hereunder. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or application by the Company of Securities or the proceeds thereof.
34
SECTION 604. May Hold Securities.
The Trustee, any Paying Agent, Security Registrar, Authenticating Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject to Section 613 and TIA Sections 310(b) and 311, may otherwise deal with the Company with the same rights it would have if it were not Trustee, Paying Agent,
Security Registrar, Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to the extent required by law. The Trustee shall
be under no liability for interest on, or investment of, any money received by it hereunder.
SECTION 606. Compensation and
Reimbursement.
The Company agrees:
(1) to pay to the Trustee (acting in any capacity hereunder) from time to time compensation for all services rendered by it hereunder,
including extraordinary services rendered in connection with or during the continuation of a default hereunder (which compensation shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust) as agreed
in writing among the parties;
(2) to reimburse each of the Trustee and any predecessor Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in accordance with any provision of this Indenture (including the reasonable compensation and the expenses and disbursements of its agents and counsel), except to the extent any such
expense, disbursement or advance may be attributable to its gross negligence or willful misconduct as determined by a court of competent jurisdiction in a final non-appealable order; and
(3) to indemnify each of the Trustee (acting in any capacity hereunder) and any predecessor Trustee and each of their respective directors,
officers, agents and employees for, and to protect and hold each of them harmless against, any loss, damages, claims, fees, liability or expense, including taxes (other than taxes based upon, measured by or determined by the income or gain of the
Trustee), arising out of or in connection with the acceptance or administration of the trust or trusts or the performance of its duties hereunder, including the costs and expenses of defending itself against any claim or liability in connection with
the exercise or performance of any of its powers or duties hereunder except to the extent any such loss, liability or expense may be attributable to its own gross negligence or willful misconduct as determined by a court of competent jurisdiction in
a final non-appealable order.
As security for the performance of the obligations of the Company under this Section, the Trustee shall
have a lien prior to the Securities upon all property and funds held or collected by the Trustee as such, except funds held in trust for the payment of principal of (or premium or Make-Whole Amount, if any) or interest on particular Securities or
any coupons.
When the Trustee incurs expenses or renders services in connection with an Event of Default described in Section 501(5)
and (6), such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any Bankruptcy Law.
The provisions of this Article 6, as applicable, shall survive the termination of this Indenture or the resignation or removal of the Trustee.
35
SECTION 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that shall be eligible to act as Trustee under TIA Section 310(a)(1) and shall have a
combined capital and surplus of at least $50,000,000 or is a subsidiary of a corporation that shall be a Person that has a combined capital and surplus of at least $50,000,000 and that unconditionally guarantees the obligations of the Trustee
hereunder. If such Trustee or Person publishes reports of condition at least annually, pursuant to law or the requirements of Federal, State, Territorial or District of Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such Trustee or Person shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee in accordance with the applicable requirements of Section 609.
(b) The
Trustee may resign at any time with respect to the Securities of one or more series by giving written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days
after the giving of such notice of resignation, the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed upon 30 days notice with respect to the Securities of any series by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of Section 613 or TIA Section 310(b) after written request therefor by the
Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall
cease to be eligible under Section 607 and shall fail to resign after written request therefor by the Company or by any Holder of a Security who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees with respect to the Securities of that or those series (it being understood that any such
successor Trustee may be appointed with respect to the Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such
36
appointment, become the successor Trustee with respect to the Securities of such series and to that extent supersede the successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the Company or the Holders of Securities and accepted appointment in the manner hereinafter provided, any Holder of a Security who has been a bona fide Holder of a Security of
such series for at least six months may, on behalf of himself and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to Securities of such series.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series in the manner provided for notices to the Holders of Securities in Section 106. Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment By Successor.
(a) In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation or removal of the retiring Trustee shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee shall, upon payment of its charges, execute and deliver an
instrument transferring to such successor Trustee all the rights, powers and trusts of the retiring Trustee, and shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 606. No resigning or removed Trustee shall have any liability or responsibility for the action or inaction of any successor Trustee.
(b) In case of the appointment hereunder of a successor Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the Securities of one or more series shall execute and deliver an indenture supplemental hereto, pursuant to Article Nine hereof, wherein each successor Trustee shall accept
such appointment and that (1) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, each successor Trustee all the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such successor Trustee relates, (2) if the retiring Trustee is not retiring with respect to all Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series as to which the retiring Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same trust and that each such Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such
Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Trustee shall become effective to the extent provided therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer and deliver to such successor Trustee all property and money held by such retiring Trustee hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
(e) All monies due and owing to the Trustee shall be paid before the Successor Trustee takes over.
37
SECTION 610. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article, without the execution or filing of any paper or any further act on the part of any of the parties hereto. In case any Securities or coupons shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons. In case any Securities or coupons shall not have been authenticated by such predecessor Trustee, any such successor Trustee may authenticate and deliver such Securities or
coupons, in either its own name or that of its predecessor Trustee, with the full force and effect that this Indenture provides for the certificate of authentication of the Trustee.
SECTION 611. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities that shall be authorized to act on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration of transfer or partial redemption or repayment thereof or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly furnished to the Company. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the Trustee’s
certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be reasonably acceptable to the Company and, except as may otherwise be provided pursuant to Section 301, shall at all times be a bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or of any State or the District of Columbia, authorized under such laws to act as Authenticating Agent, having a combined capital and surplus of not less than $25,000,000 and subject to
supervision or examination by Federal or State authorities. If such Authenticating Agent publishes reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent shall be deemed to be its combined capital and surplus as set forth in its most recent report of condition so published. In case at any time an Authenticating Agent shall
cease to be eligible in accordance with the provisions of this Section, such Authenticating Agent shall resign immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency or corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible under this Section, without the execution or filing of any paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any time terminate the agency of an Authenticating Agent by giving written notice of termination to such Authenticating Agent and to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such Authenticating Agent shall cease to be eligible in accordance with the provisions of this Section, the Trustee for such series may appoint a successor Authenticating Agent that
shall be acceptable to the Company and shall give notice of such appointment to all Holders of Securities of or within the series with respect to which such Authenticating Agent will serve in the manner set forth in Section 106. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of its predecessor hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
38
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation
including reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more
series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate of authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
|
|
|
|
|
, as Trustee
|
|
By
|
|
|
|
|
|
As Authenticating Agent
|
|
By
|
|
|
|
|
|
Authorized Officer
|
SECTION 612. Certain Duties and Responsibilities.
No provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or indemnity satisfactory to the Trustee against such risk or liability is
not reasonably assured to it. Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 613. Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee shall either eliminate such interest or
resign, to the extent and in the manner provided by, and subject to the provisions of, the TIA and this Indenture. To the extent permitted by such Act, the Trustee shall not be deemed to have a conflicting interest by virtue of being a trustee under
this Indenture with respect to Securities of more than one series. In case an Event of Default shall occur and be continuing, the Trustee shall exercise such of its rights and powers under the applicable Indenture and use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the circumstances in the conduct of his own affairs.
SECTION 614. Appointment of Co-Trustee.
(a) Notwithstanding any other provisions of this Indenture, if at any time in connection with the issuance of Bearer Securities, if any,
hereunder, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the trust estate created hereunder may at the time be located with respect to Bearer Securities, the Trustee shall have the power and may execute
and deliver all instruments necessary to appoint one or more Persons to act as a co-trustee or co-trustees, or separate trustee or separate trustees, of all or any part of the trust estate created hereunder with respect to Bearer Securities, and to
vest in such Person or Persons, in such capacity and for the benefit of the Holders of such Securities, such title to the trust created under this Indenture, or any part hereof, and subject to the other provisions of this Section, such powers,
duties, obligations, rights and trusts as the Trustee may consider necessary or desirable as they relate to such Bearer Securities. No co-trustee or separate trustee hereunder shall be required to meet the terms of eligibility as a successor trustee
under Section 608 hereof.
39
(b) Every such separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and conditions:
(i) all rights, powers, duties and obligations conferred or imposed
upon the Trustee shall be conferred or imposed upon and exercised or performed by the Trustee and such separate trustee or co-trustee jointly (it being understood that such separate trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act or acts are to be performed, the Trustee shall be incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the trust estate created hereunder or any portion thereof in any such jurisdiction) shall be exercised and performed singly by such separate trustee or co-trustee, but solely
at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other
trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument appointing any separate trustee or co-trustee shall refer to this Indenture and the conditions of this Article Six.
(d) Each such separate trustee and co-trustee, upon its acceptance of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection or rights (including the rights to compensation, reimbursement and indemnification hereunder) to, the Trustee. Every such instrument shall be filed with the Trustee.
ARTICLE SEVEN
HOLDERS’
LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders.
Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security Registrar nor any director, officer, agent or employee of any of them shall be held accountable by reason of the disclosure of any information as to the names and
addresses of the Holders of Securities or coupons in accordance with TIA Section 312, regardless of the source from which such information was derived, and that the Trustee shall not be held accountable by reason of mailing any material
pursuant to a request made under TIA Section 312(b).
SECTION 702. Reports by Trustee.
Within 60 days after March 15 of each year commencing with the first March 15 after the first issuance of Securities pursuant to
this Indenture, the Trustee shall transmit by mail to all Holders of Securities as provided in TIA Section 313(c) a brief report dated as of such March 15 if and to the extent required by TIA Section 313(a).
SECTION 703. Reports by Company.
The Company will:
(1) file
with the Trustee, within 15 days after the Company files the same with the Commission, 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 Commission may from
time to time by rules and regulations prescribe) that the Company may be required to file with the Commission 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 it will
40
file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such of the supplementary and periodic information, documents
and reports that may 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;
(2) file with the Trustee and the Commission, in accordance with rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the Company with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(3) transmit by mail (or to the extent permitted by applicable procedures or regulations, deliver electronically) to the Holders of
Securities, within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in TIA Section 313(c), such summaries of any information, documents and reports required to be filed by the Company pursuant to
paragraphs (1) or (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
The Company’s obligations under Section 703(1) and (2) shall be deemed satisfied, and no further filing with or delivery to the
Trustee of copies of such information, documents or reports shall be required pursuant to such Sections, to the extent the Company has filed such information, documents or reports with the Commission via the Electronic Data Gathering and Retrieval
(EDGAR) or any successor system. Delivery, posting or filing of such reports, information and documents is for informational purposes only and the Trustee’s receipt of such 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 hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have
no liability or responsibility for the filing, timeliness or content of any report required hereunder (other than as required under Section 702 hereof).
SECTION 704. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) with respect to each series of Securities, quarterly or semi-annually (as applicable), not later than 15 days after the Regular Record
Date for interest for such series of Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses of the Holders of Registered Securities of such series as of such Regular Record Date, or if there is no Regular
Record Date for interest for such series of Securities, semi-annually, upon such dates as are set forth in the Board Resolution or indenture supplemental hereto authorizing such series, and
(b) at such other times as the Trustee may request in writing, within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time such list is furnished, provided, however, that, so long as the Trustee is the Security Registrar, no such lists shall be required to be furnished.
ARTICLE EIGHT
CONSOLIDATION,
MERGER, SALE, LEASE OR CONVEYANCE
SECTION 801. Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted
Subject to Certain Conditions.
The Company may consolidate with, or sell, lease or convey all or substantially all of its assets to, or
merge with or into any other Person, provided that in any such case, (i) either the Company shall be the continuing entity, or the successor (if other than the Company) entity shall be a Person organized and existing under the laws of the
United States or a State thereof or the District of Columbia and such successor entity shall expressly assume the due and punctual payment of the principal of (and premium or Make-Whole Amount, if any) and any interest (including all Additional
Amounts, if any, payable pursuant to Section 1009) on all of the Securities, according to their tenor,
41
or as otherwise specified pursuant to Section 301, and the due and punctual performance and observance of all of the covenants and conditions of this Indenture to be performed by the Company
by supplemental indenture, complying with Article Nine hereof, satisfactory to the Trustee, executed and delivered to the Trustee by such Person and (ii) immediately after giving effect to such transaction, no Event of Default shall have
occurred and be continuing.
SECTION 802. Rights and Duties of Successor Corporation.
In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption by the successor entity, such successor
entity shall succeed to and be substituted for the Company, with the same effect as if it had been named herein as the party of the first part, and the predecessor entity, except in the event of a lease, shall be relieved of any further obligation
under this Indenture and the Securities. Such successor entity thereupon may cause to be signed, and may issue either in its own name or in the name of the Company, any or all of the Securities issuable hereunder that theretofore shall not have been
signed by the Company and delivered to the Trustee; and, upon the order of such successor entity, instead of the Company, and subject to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall
deliver any Securities that previously shall have been signed and delivered by the officers of the Company to the Trustee for authentication, and any Securities that such successor entity thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Securities so issued shall in all respects have the same legal rank and benefit under this Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of
such Securities had been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale, lease or
conveyance, such changes in phraseology and form (but not in substance) may be made in the Securities thereafter to be issued as may be appropriate.
SECTION 803. Officers’ Certificate and Opinion of Counsel.
Any consolidation, merger, sale, lease or conveyance permitted under Section 801 is also subject to the condition that the Trustee
receive an Officers’ Certificate and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease or conveyance, and the assumption by any successor entity, complies with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or coupons, the Company, when authorized by or pursuant to a Board Resolution, and the
Trustee, at any time and from time to time, may enter into one or more indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the Holders of all or any series
of Securities (and, if such covenants are to be for the benefit of less than all series of Securities, stating that such covenants are expressly being included solely for the benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of the Holders of all or any series of
Securities (and if such Events of Default are to be for the benefit of less than all series of Securities, stating that such Events of Default are expressly being included solely for the benefit of such series);
provided
,
however
, that
in respect of any such additional Events of Default such supplemental indenture may provide for a particular period of grace after default (which period may be shorter or longer than that allowed in the case of other defaults) or may
42
provide for an immediate enforcement upon such default or may limit the remedies available to the Trustee upon such default or may limit the right of the Holders of a majority in aggregate
principal amount of that or those series of Securities to which such additional Events of Default apply to waive such default; or
(4) to
add to or change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change or eliminate any restrictions on the payment of principal of or any premium, Make-Whole Amount or Interest on
Bearer Securities, to permit Bearer Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities of other authorized denominations or to permit or facilitate the issuance
of Securities in uncertificated form, provided that any such action shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect as determined in good faith by the Board of
Directors; or
(5) to add to, change or eliminate any of the provisions of this Indenture in respect of any series of Securities, provided
that any such addition, change or elimination shall (i) neither (A) apply to any Security of any series created prior to the execution of such supplemental indenture and entitled to the benefit of such provision, nor (B) modify the
rights of the Holder of any such Security with respect to such provision; or (ii) become effective only when there is no Security Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series and any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or exchangeable for other securities or property of the Company; or
(8)
to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect to the Securities of one or more series and to add to or change any of the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement
any provision herein which may be defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture that shall not be inconsistent with the provisions of this
Indenture or to make any other changes, provided that in each case, such provisions shall not adversely affect the interests of the Holders of Securities of any series or any related coupons in any material respect as determined in good faith by the
Board of Directors; or
(10) to close this Indenture with respect to the authentication and delivery of additional series of Securities or
to qualify, or maintain qualification of, this Indenture under the TIA; or
(11) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 401, 1402 and 1403; provided in each case that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series of Securities in any material respect.
SECTION 902.
Supplemental Indentures with Consent of Holders.
The Company and the Trustee may (i) amend or supplement this Indenture or the
Securities without notice to any Holder of Securities but with the written consent of the Holders of a majority in aggregate principal amount of the Securities of all series then outstanding or (ii) supplement this Indenture with regard to a
series of Securities, amend or supplement a Supplemental Indenture relating to a series of Securities, or amend the Securities of a series, without notice to any Holder of Securities but with the written consent of the Holders of a majority in
aggregate principal amount of the Securities of that series then outstanding. The Holders of a majority in principal amount of the Securities of all series then outstanding may waive compliance by the Company with any provision of this Indenture or
the Securities without notice to any Holder of Securities. The Holders of a majority in principal amount of the Securities of any series then outstanding may waive compliance with any provision of this Indenture, any Supplemental Indenture or the
Securities of that series with regard to the Securities of that series without notice to any Holder of Securities. However, without the consent of the Holder of each Outstanding Security affected thereby, no amendment, supplement or waiver may:
(1) change the Stated Maturity of the principal of (or premium or Make-Whole Amount, if any, on) or any installment of principal of or
interest on, any Security; or reduce the principal amount thereof or the rate or amount of interest thereon or any Additional Amounts payable in respect thereof, or any premium or Make-Whole Amount payable upon the redemption thereof, or
43
change any obligation of the Company to pay Additional Amounts pursuant to Section 1009 (except as contemplated by Section 801(i) and permitted by Section 901(1)), or reduce the
amount of the principal of an Original Issue Discount Security or Make-Whole Amount, if any, that would be due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or change any Place of Payment where, or the currency or currencies, currency unit or units or composite currency or currencies in which, the principal of any Security or any premium or Make-Whole Amount or
any Additional Amounts payable in respect thereof or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of redemption or repayment
at the option of the Holder, on or after the Redemption Date or the Repayment Date, as the case may be); or
(2) reduce the percentage in
principal amount of the Outstanding Securities of any series, the consent of whose Holders is required for any such supplemental indenture, or the consent of whose Holders is required for any waiver with respect to such series (or compliance with
certain provisions of this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture or; or reduce the requirements of Section 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, Section 513 or Section 1010, except to increase the required percentage to effect
such action or to provide that certain other provisions of this Indenture cannot be modified or waived without the consent of the Holder of each Outstanding Security affected thereby; or
(4) make any change that adversely affects the right to convert or exchange any Security pursuant to Section 301 or decrease the
conversion or exchange rate or increase the conversion or exchange price of any such Security.
It shall not be necessary for any Act of
Holders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture that changes or eliminates any covenant or other provision of this Indenture that has expressly been included for the
benefit of one or more particular series of Securities, or that modifies the rights of the Holders of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the
Holders of Securities of any other series.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the modification thereby
of the trusts created by this Indenture, the Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Opinion of Counsel and an Officers’ Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and that all conditions precedent to the execution of such supplemental indenture have been complied with. The Trustee may, but shall not be obligated to, enter into any such supplemental indenture that
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental
Indentures.
Upon the execution of any supplemental indenture under this Article, this Indenture shall be modified in accordance
therewith, and such supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupon appertaining thereto shall be bound
thereby.
44
SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new Securities of any series so modified as to conform, in the opinion of
the Trustee and the Company, to any such supplemental indenture may be prepared and executed by the Company and authenticated and delivered by the Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any supplemental indenture pursuant to the provisions of Section 902, the
Company shall give notice thereof to the Holders of each Outstanding Security affected, in the manner provided for in Section 106, setting forth in general terms the substance of such supplemental indenture.
SECTION 908. Subordination Unimpaired.
No provision in any supplemental indenture that affects the superior position of the holders of Senior Debt shall be effective against holders
of Senior Debt.
ARTICLE TEN
COVENANTS
SECTION 1001.
Payment of Principal, Premium or Make-Whole Amount, if any, Interest and Additional Amounts.
The Company covenants and agrees for the
benefit of the Holders of each series of Securities that it will duly and punctually pay the principal of (and premium or Make-Whole Amount, if any) and interest on and any Additional Amounts payable in respect of the Securities of that series in
accordance with the terms of such series of Securities, any coupons appertaining thereto and this Indenture. Unless otherwise specified as contemplated by Section 301 with respect to any series of Securities, any interest due on and any
Additional Amounts payable in respect of Bearer Securities on or before Maturity, other than Additional Amounts, if any, payable as provided in Section 1009 in respect of principal of (or premium or Make-Whole Amount, if any, on) such a
Security, shall be payable only upon presentation and surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect to Securities of any series pursuant to
Section 301, at the option of the Company, all payments of principal may be paid by check to the registered Holder of the Registered Security or other person entitled thereto against surrender of such Security.
SECTION 1002. Maintenance of Office or Agency.
If Securities of a series are issuable only as Registered Securities, the Company shall maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented or surrendered for payment or conversion, where Securities of that series may be surrendered for registration of transfer or exchange, and where notices and demands to
or upon the Company in respect of the Securities of that series and this Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain: (A) an office or agency at a Place of Payment where any
Registered Securities of that series may be presented or surrendered for payment or conversion, where any Registered Securities of that series may be surrendered for exchange, where notices and demands to or upon the Company in respect of the
Securities of that series and this
45
Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for payment or conversion in the circumstances described in the
following paragraph (and not otherwise); (B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series that is located outside the United States, an office or agency where Securities of that series and related
coupons may be presented and surrendered for payment (including payment of any Additional Amounts payable on Securities of that series pursuant to Section 1009) or conversion;
provided
,
however
, that if the Securities of that
series are listed on the Luxembourg Stock Exchange, The International Stock Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company will maintain a Paying Agent for the Securities
of that series in Luxembourg, London, England or any other required city located outside the United States, as the case may be, so long as the Securities of that series are listed on such exchange; and (C) subject to any laws or regulations
applicable thereto, in each Place of Payment for that series located outside the United States an office or agency where any Securities of that series may be surrendered for registration of transfer, where Securities of that series may be
surrendered for exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served. The Company will give prompt written notice to the Trustee of the location, and any change in
the location, of each such office or agency. If at any time the Company shall fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands (but
not service of process) may be made or served at the Corporate Trust Office, except that Bearer Securities of that series and the related coupons may be presented and surrendered for payment (including payment of any Additional Amounts payable on
Bearer Securities of that series pursuant to Section 1009) at the offices specified in the Security, in London, England, and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and
demands.
Unless otherwise specified with respect to any Securities pursuant to Section 301, no payment of principal,
premium, Make-Whole Amount or interest on or Additional Amounts in respect of Bearer Securities shall be made by the Company at any office or agency of the Company in the United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
provided
,
however
, that, if the Securities of a series are payable in Dollars, payment of principal of and any premium and interest on any Bearer Security
(including any Additional Amounts or Make-Whole Amount payable on Securities of such series pursuant to Section 1009) shall be made at the office of the Company’s Paying Agent in the City of Dallas, Texas if (but only if) payment in
Dollars of the full amount of such principal, premium, interest, Additional Amounts or Make-Whole Amount, as the case may be, at all offices or agencies outside the United States maintained for the purpose by the Company in accordance with this
Indenture, is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may from
time to time designate one or more other offices or agencies where the Securities of one or more series and related coupons, if any, may be presented or surrendered for any or all of such purposes, and may from time to time rescind such
designations;
provided
,
however
, that no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set forth above for Securities of any
series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section 301, if and so long as the Securities of any series
(i) are denominated in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long as it is required under any other provision of the Indenture, then the Company will maintain with respect to each such series of Securities,
or as so required, at least one exchange rate agent.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect to any series of any Securities and any related coupons, it will, on
or before each due date of the principal of (and premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any of the Securities of that series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series)
sufficient to pay the principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the
Trustee of its action or failure so to act.
46
Whenever the Company shall have one or more Paying Agents for any series of Securities and any
related coupons, it will, on or before each due date of the principal of (and premium or Make-Whole Amount, if any), or interest on or Additional Amounts in respect of, any Securities of that series, deposit with a Paying Agent a sum (in the
currency or currencies, currency unit or units or composite currency or currencies described in the preceding paragraph) sufficient to pay the principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such principal, premium, Make-Whole Amount or interest or Additional Amounts and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its
action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of principal of (and premium or Make-Whole Amount, if any) or interest on Securities or
Additional Amounts in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the Company (or any other obligor upon the Securities) in the making of any such payment
of principal (and premium or Make-Whole Amount, if any) or interest or Additional Amounts; and
(3) at any time during the continuance of
any such default upon the written request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon the same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, 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 or Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect of, any Security of any series and remaining unclaimed for two years after such principal (and
premium or Make-Whole Amount, if any), interest or Additional Amounts has become due and payable shall be paid to the Company upon Company Request or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for payment of such principal of (and premium or Make-Whole Amount, if any) or interest on, or any Additional Amounts in respect of, any Security, 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 an Authorized Newspaper, 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 1004. [Reserved].
SECTION 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect the
existence, material rights (charter and statutory) and material franchises of the Company and its Subsidiaries;
provided
,
however
, that the Company shall not be required to preserve any right or franchise if the Company shall determine
that the preservation thereof is no longer desirable in the conduct of the business of the Company and its Subsidiaries as a whole or that the loss thereof is not disadvantageous in any material respect to the Holders of Securities of any series.
47
SECTION 1006. Maintenance of Properties.
The Company will cause all of its material properties used or useful in the conduct of its business to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and improvements thereof, all as in the judgment of the Company may be necessary so
that the business carried on in connection therewith may be properly and advantageously conducted at all times;
provided
,
however
, that, for the avoidance of doubt, nothing in this Section shall prevent the Company from selling or
otherwise disposing of its properties in any transaction that is, in the judgment of the Company, desirable in the conduct of its business.
SECTION 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged, before the same shall become delinquent, all material taxes,
assessments and governmental charges levied or imposed upon it or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary;
provided
,
however
, that the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment or charge whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
SECTION 1008. Statement as to Compliance.
The Company will deliver to the Trustee within 120 days after the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his or her knowledge of the Company’s compliance with all conditions and covenants under this Indenture and, in the event of any noncompliance, specifying such
noncompliance and the nature and status thereof. For purposes of this Section 1008, such compliance shall be determined without regard to any period of grace or requirement of notice under this Indenture.
SECTION 1009. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company will pay to the Holder of any Security of such series
or any coupon appertaining thereto Additional Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is mentioned, in any context except in the case of Section 502(1), the payment of the principal of
or any premium, Make-Whole Amount or interest on, or in respect of, any Security of any series or payment of any related coupon or the net proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of such series established pursuant to Section 301 to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if the Securities of a series provide for the payment of Additional
Amounts, at least 10 days prior to the first Interest Payment Date with respect to that series of Securities (or if the Securities of that series will not bear interest prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal and any premium or Make-Whole Amount or interest if there has been any change with respect to the matters set forth in the below-mentioned Officers’ Certificate, the
Company will furnish the Trustee and the Company’s principal Paying Agent or Paying Agents, if other than the Trustee, with an Officers’ Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of
principal of and any premium or interest on the Securities of that series shall be made to Holders of Securities of that series or any related coupons who are not United States persons without withholding for or on account of any tax, assessment or
other governmental charge described in the Securities of or within the series. If any such withholding shall be required, then such Officers’ Certificate shall
48
specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities of that series or related coupons and the Company will pay to the Trustee or such
Paying Agent the Additional Amounts, if any, required by the terms of such Securities. In the event that the Trustee or any Paying Agent, as the case may be, shall not so receive the above mentioned certificate, then the Trustee or such Paying Agent
shall be entitled (i) to assume that no such withholding or deduction is required with respect to any payment of principal or interest with respect to any Securities of a series or related coupons until it shall have received a certificate
advising otherwise and (ii) to make all payments of principal and interest with respect to the Securities of a series or related coupons without withholding or deductions until otherwise advised. The Company covenants to indemnify the Trustee
and any Paying Agent and their respective officers, directors, employees and agents for, and to hold them harmless against, any loss, liability or expense (including but not limited to legal fees and expenses) reasonably incurred without gross
negligence or bad faith on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officers’ Certificate furnished pursuant to this Section or in reliance on the Company’s not furnishing
such an Officers’ Certificate.
SECTION 1010. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Sections 1005 to 1007, inclusive,
and with any other term, provision or condition with respect to the Securities of any series specified in accordance with Section 301 (except any such term, provision or condition that could not be amended without the consent of all Holders of
Securities of such series pursuant to Section 902), if before or after the time for such compliance the Holders of at least a majority in principal amount of all outstanding Securities of such series, by Act of such Holders, either waive such
compliance in such instance or generally waive 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, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF
SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series that are redeemable before their Stated Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102.
Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities (in whole or in part) shall be evidenced by
or pursuant to a Board Resolution. In case of any redemption at the election of the Company of less than all of the Securities of any series, the Company shall, at least 45 days prior to the giving of the notice of redemption in Section 1104
(unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee, in writing, of such Redemption Date, of the principal amount of Securities of such series (identified by CUSIP or other control number) to be redeemed and of the
Redemption Price of such Securities and any accrued interest and Additional Amounts payable with respect thereto, if any, on the Redemption Date. In the case of any redemption of Securities prior to the expiration of any restriction on such
redemption provided in the terms of such Securities or elsewhere in this Indenture, the Company shall furnish the Trustee with an Officers’ Certificate and Opinion of Counsel evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series issued with the same terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued on such date with the same terms not previously called for redemption, by such method as the Trustee shall deem fair
and appropriate, subject to the rules and procedures of
49
DTC, and that may provide for the selection for redemption of portions (equal to the minimum authorized denomination for Securities of that series or any integral multiple thereof) of the
principal amount of Securities of such series of a denomination larger than the minimum authorized denomination for Securities of that series.
If any Security selected for partial redemption is converted in part before termination of the conversion or exchange right with respect to
the portion of the Security so selected, the converted or exchanged portion of such Security shall be deemed (so far as may be) to be the portion selected for redemption. Securities that have been converted or exchanged during a selection of
Securities to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection. In any case where more than one Security is registered in the same name, the Trustee in its discretion may treat the aggregate principal
amount so registered as if it were represented by one Security.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption and, in the case of any Securities selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the principal amount of such Security that has been or is to be redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 106, not less than 30 days nor more than 60 days prior to the
Redemption Date, unless a shorter period is specified by the terms of such series established pursuant to Section 301, to each Holder of Securities to be redeemed, but failure to give such notice in the manner herein provided to the Holder of
any Security designated for redemption as a whole or in part, or any defect in the notice to any such Holder, shall not affect the validity of the proceedings for the redemption of any other such Security or portion thereof.
Any notice that is mailed or otherwise given to the Holders of Registered Securities in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date;
(2)
the Redemption Price, accrued interest to the Redemption Date payable as provided in Section 1106, if any, and Additional Amounts, if any;
(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and, in the case of partial redemption, the
principal amount) of the particular Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, that
on and after the Redemption Date, upon surrender of such Security, the holder will receive, without a charge, a new Security or Securities of authorized denominations for the principal amount thereof remaining unredeemed;
(5) that on the Redemption Date the Redemption Price and accrued interest to the Redemption Date payable as provided in Section 1106, if
any, will become due and payable upon each such Security, or the portion thereof, to be redeemed and, if applicable, that interest thereon shall cease to accrue on and after said date;
(6) the Place or Places of Payment where such Securities, together in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price and accrued interest, if any, or for conversion or exchange;
(7) that the redemption is for a sinking fund, if such is the case;
50
(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any,
surrendered for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying Agent is furnished;
(9) if Bearer Securities of any series are to
be redeemed and any Registered Securities of such series are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities not subject to the redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such exchanges may be made;
(10) the CUSIP number of such Security, if
any, provided that neither the Company nor the Trustee shall have any responsibility for any such CUSIP number;
(11) if applicable, that
a Holder of Securities who desires to convert or exchange Securities to be redeemed must satisfy the requirements for conversion or exchange contained in such Securities, the then existing conversion or exchange price or rate and the date and time
when the option to convert or exchange shall expire and the place or places where such Securities may be surrendered for conversion or exchange; and
(12) such other information as the Trustee reasonably deems appropriate.
Notice of redemption of Securities to be redeemed shall be given by the Company or, at the Company’s written request, by the Trustee in
the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
At or prior to 10:00 a.m. (local time at the Place of Payment) on any Redemption Date, the Company shall deposit with the Trustee or with a
Paying Agent (or, if the Company is acting as its own Paying Agent, which it may not do in the case of a sinking fund payment under Article Twelve, segregate and hold in trust as provided in Section 1003) an amount of money in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) sufficient to pay on the
Redemption Date the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions thereof that are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and payable at
the Redemption Price therein specified in the currency or currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series) (together with accrued interest and Additional Amounts payable with respect thereto, if any, on the Redemption Date), and from and after such date (unless the Company shall default in the payment of the Redemption Price
and accrued interest and Additional Amounts, if any) such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for redemption in accordance with said notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date, such Security shall be paid by the Company
at the Redemption Price, together with accrued interest and Additional Amounts payable with respect thereto, if any, on the Redemption Date; provided, however, that installments of interest on Bearer Securities whose Stated Maturity is on or prior
to the Redemption Date shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and
surrender of coupons for such interest; and provided further that except as otherwise provided with respect to Securities convertible or exchangeable into other securities or property (including securities of other issuers, provided that such
securities are registered under Section 12 of the Exchange Act and such issuer is then eligible to use Form S-3 (or any successor form) for a primary offering of its securities) of the Company, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities, registered as such at the close of business on the relevant Record Dates according to their terms
and the provisions of Section 307.
51
If any Bearer Security surrendered for redemption shall not be accompanied by all
appurtenant coupons maturing after the Redemption Date, such Security may be paid after deducting from the Redemption Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such security or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have been made from the Redemption Price, such Holder shall be entitled to receive the amount so deducted;
provided
,
however
, that interest represented by
coupons shall be payable only at an office or agency located outside the United States (except as otherwise provided in Section 1002) and, unless otherwise specified as contemplated by Section 301, only upon presentation and surrender of
those coupons. If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the principal, (and premium or Make-Whole Amount, if any) shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 1107. Securities Redeemed in Part.
Any Security that is to be redeemed only in part (pursuant to the provisions of this Article or of Article Twelve) shall be surrendered at a
Place of Payment therefor (with, if the Company or the Trustee so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall authenticate and deliver to the Holder of such Security without service charge a new Security or Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in excess of such minimum amount provided for by the terms of such Securities of any series is herein referred to as an
“optional sinking fund payment.” If provided for by the terms of any Securities of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any mandatory sinking fund payment with respect to the Securities of a series,
(1) deliver Outstanding Securities of such series (other than any previously called for redemption) together in the case of any Bearer Securities of such series with all unmatured coupons appertaining thereto and (2) apply as a credit
Securities of such series that have been redeemed either at the election of the Company pursuant to the terms of such Securities or through the application of permitted optional sinking fund payments pursuant to the terms of such Securities, as
provided for by the terms of such Securities, or which have otherwise been acquired by the Company; provided that such Securities so delivered or applied as a credit have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price specified in such Securities for redemption through operation of the sinking fund and the amount of such mandatory sinking fund payment shall be reduced accordingly.
52
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 60 days prior to each sinking fund payment date for Securities of any series, the Company will deliver to the Trustee an
Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund payment for that series pursuant to the terms of that series, the portion thereof, if any, which is to be satisfied by payment of cash in the currency or
currencies, currency unit or units or composite currency or currencies in which the Securities of such series are payable (except as otherwise specified pursuant to Section 301 for the Securities of such series) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series pursuant to Section 1202, and the amount of optional sinking fund payments, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing mandatory sinking fund payment, the Company shall thereupon be
obligated to pay the amount therein specified. Not less than 30 days before each such sinking fund payment date the Trustee shall select the Securities to be redeemed upon such sinking fund payment date in the manner specified in Section 1103
and cause notice of the redemption thereof to be given in the name of and at the expense of the Company in the manner provided in Section 1104. Such notice having been duly given, the redemption of such Securities shall be made upon the terms
and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
[RESERVED]
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance.
If, pursuant to Section 301, provision is made for either or both of (a) defeasance of the Securities of or within a series under
Section 1402 or (b) covenant defeasance of the Securities of or within a series under Section 1403 to be applicable to the Securities of any series, then the provisions of such Section or Sections, as the case may be, together with
the other provisions of this Article (with such modifications thereto as may be specified pursuant to Section 301 with respect to any Securities), shall be applicable to such Securities and any coupons appertaining thereto, and the Company may
at its option by Board Resolution at any time, with respect to such Securities and any coupons appertaining thereto, elect to defease such Outstanding Securities and any coupons appertaining thereto pursuant to Section 1402 (if applicable) or
Section 1403 (if applicable) upon compliance with the conditions set forth below in this Article.
SECTION 1402. Defeasance and
Discharge.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a
series, the Company shall be deemed to have been discharged from its obligations with respect to such Outstanding Securities and any coupons appertaining thereto on the date the conditions set forth in Section 1404 are satisfied (hereinafter,
“
defeasance
”). For this purpose, such defeasance means that the Company shall be deemed to have paid and discharged the entire indebtedness represented by such Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 1405 and the other Sections of this Indenture referred to in clauses (A) and (B) below, and to have satisfied all of its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as such Securities and any coupons appertaining thereto are concerned (and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging the
same), except for the following that shall survive until otherwise terminated or discharged hereunder: (A) the rights of Holders of such Outstanding Securities and any coupons appertaining thereto to receive, solely from the trust fund
described in Section 1404 and as more fully set forth in such Section, payments in respect of the principal of (and premium or Make-Whole Amount, if any) and interest, if any, on such Securities and any coupons appertaining thereto when such
payments are due, (B) the Company’s obligations with respect to such Securities under Sections 305, 306, 1002 and 1003 and with respect to the payment of Additional
53
Amounts, if any, on such Securities as contemplated by Section 1009, (C) the rights, powers, trusts, duties and immunities of the Trustee hereunder including but not limited to
Section 606 hereof and (D) this Article. Subject to compliance with this Article Fourteen, the Company may exercise its option under this Section notwithstanding the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance.
Upon the Company’s exercise of the above option applicable to this Section with respect to any Securities of or within a series, the
Company shall be released from its obligations under Sections 1005 to 1007, inclusive, and, if specified pursuant to Section 301, its obligations under any other covenant, with respect to such Outstanding Securities and any coupons appertaining
thereto on and after the date the conditions set forth in Section 1404 are satisfied (hereinafter, “
covenant defeasance
”), and such Securities and any coupons appertaining thereto shall thereafter be deemed to be not
“Outstanding” for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences of any thereof) in connection with Sections 1005 to 1007, inclusive, or such other covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance means that, with respect to such Outstanding Securities and any coupons appertaining thereto, the Company may omit to comply with and shall
have no liability in respect of any term, condition or limitation set forth in any such Section or such other covenant, whether directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other covenant or by
reason of reference in any such Section or such other covenant to any other provision herein or in any other document and such omission to comply shall not constitute a default or an Event of Default under Section 501(4) or 501(7) or otherwise,
as the case may be, but, except as specified above, the remainder of this Indenture and such Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 1402 or Section 1403 to any Outstanding Securities of or within a
series and any coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
as trust funds in trust for the purpose of making the following payments, specifically pledged as security for, and dedicated solely to, the benefit of the Holders of such Securities and any coupons appertaining thereto, (1) an amount in such
currency, currencies or currency unit in which such Securities and any coupons appertaining thereto are then specified as payable at Stated Maturity, or (2) Government Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the currency, currencies or currency unit in which such Securities and coupons appertaining thereto are then specified as payable at Stated Maturity) that through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of any payment of principal of (and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination thereof in an amount, sufficient, without consideration of any reinvestment of such principal and interest, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and that shall be applied by the Trustee to pay and discharge, (i) the principal of (and premium or Make-Whole Amount, if any) and
interest, if any, on such Outstanding Securities and any coupons appertaining thereto on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory sinking fund payments or analogous payments applicable
to such Outstanding Securities and any coupons appertaining thereto on the day on which such payments are due and payable in accordance with the terms of this Indenture and of such Securities and any coupons appertaining thereto; provided, that the
Trustee shall have been irrevocably instructed to apply such money or the proceeds of such Government Obligations to said payments with respect to such Securities. Before such a deposit, the Company may give to the Trustee, in accordance with
Section 1102 hereof, a notice of its election to redeem all or any portion of such Outstanding Securities at a future date in accordance with the terms of the Securities of such series and Article Eleven hereof, which notice shall be
irrevocable. Such irrevocable redemption notice, if given, shall be given effect in applying the foregoing.
(b) Such defeasance or
covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other material agreement or instrument to which the Company is a party or by which it is bound (and shall not cause the Trustee to
have a conflicting interest pursuant to Section 310(b) of the TIA with respect to any Security of the Company).
54
(c) No Event of Default or event that with notice or lapse of time or both would become an Event
of Default with respect to such Securities and any coupons appertaining thereto shall have occurred and be continuing on the date of such deposit or, insofar as Sections 501(5) and 501(6) are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this condition shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (ii) since the date of execution of this Indenture, there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons appertaining thereto will not recognize income, gain or loss for Federal income tax purposes as a result of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the case if such covenant defeasance had not occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel, each stating that all conditions precedent to the defeasance under Section 1402 or the covenant defeasance under Section 1403 (as the case
may be) have been complied with and an Opinion of Counsel to the effect that either (i) as a result of a deposit pursuant to subsection (a) above and the related exercise of the Company’s option under Section 1402 or
Section 1403 (as the case may be) registration is not required under the Investment Company Act of 1940, as amended, by the Company, with respect to the trust funds representing such deposit or by the Trustee for such trust funds or
(ii) all necessary registrations under said Act have been effected.
(g) After the 91st day following the deposit, the trust funds
will not be subject to the effect of any applicable bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally.
(h) Notwithstanding any other provisions of this Section, such defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations that may be imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for purposes of this Section 1405, the “
Trustee
”) pursuant to Section 1404 in
respect of any Outstanding Securities of any series and any coupons appertaining thereto shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and any coupons appertaining thereto and this Indenture,
to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of such Securities and any coupons appertaining thereto of all sums due and to become due
thereon in respect of principal (and premium or Make-Whole Amount, if any) and interest and Additional Amounts, if any, but such money need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to Section 301, if, after a deposit referred to in Section 1404(a)
has been made, (a) the Holder of a Security in respect of which such deposit was made is
55
entitled to, and does, elect pursuant to Section 301 or the terms of such Security to receive payment in a currency or currency unit other than that in which the deposit pursuant to
Section 1404(a) has been made in respect of such Security, or (b) a Conversion Event occurs in respect of the currency or currency unit in which the deposit pursuant to Section 1404(a) has been made, the indebtedness represented by
such Security and any coupons appertaining thereto shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium or Make-Whole Amount, if any), and interest, if any, on such Security
as the same becomes due and Additional Amounts, if any, out of the proceeds yielded by converting (from time to time as specified below in the case of any such election) the amount or other property deposited in respect of such Security into the
currency or currency unit in which such Security becomes payable as a result of such election or Conversion Event based on the applicable market exchange rate for such currency or currency unit in effect on the second Business Day prior to each
payment date, except, with respect to a Conversion Event, for such currency or currency unit in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in respect thereof other than any such tax, fee or other charge that by law is for the account of the Holders of such Outstanding Securities and any coupons appertaining
thereto.
Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to the Company from time to time upon
Company Request any money or Government Obligations (or other property and any proceeds therefrom) held by it as provided in Section 1404 that, in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the amount thereof that would then be required to be deposited to effect a defeasance or covenant defeasance, as applicable, in accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF
HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any time and from time to time pursuant to this Article to make, give or
take any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be made, given or taken by Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1501, to be
held at such time and at such place as the Trustee shall determine. Notice of every meeting of Holders of Securities of any series, setting forth the time and the place of such meeting and in general terms the action proposed to be taken at such
meeting, shall be given, in the manner provided in Section 106, not less than 21 nor more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or the Holders of at least 25% in principal amount of the Outstanding
Securities of any series shall have requested the Trustee to call a meeting of the Holders of Securities of such series for any purpose specified in Section 1501, by written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication of the notice of such meeting within 21 days after receipt of such request or shall not thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities of such series in the amount above specified, as the case may be, may determine the time and the place for such meeting and may call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
56
SECTION 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any series, a Person shall be (1) a Holder of one or more Outstanding
Securities of such series, or (2) a Person appointed by an instrument in writing as proxy for a Holder or Holders of one or more Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall be the Persons entitled to vote at such meeting and their counsel, any representatives of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series;
provided
,
however
, that if any action is to be taken at such meeting with respect to a consent or waiver which this Indenture expressly provides may be given by the Holders of not less
than a specified percentage in principal amount of the Outstanding Securities of a series, the Persons entitled to vote such specified percentage in principal amount of the Outstanding Securities of such series shall constitute a quorum. In the
absence of a quorum within 30 minutes after the time appointed for any such meeting, the meeting shall, if convened at the request of Holders of Securities of such series, be dissolved. In any other case the meeting may be adjourned for a period of
not less than 10 days as determined by the chairman of the meeting prior to the adjournment of such meeting. In the absence of a quorum at any such adjourned meeting, such adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1502(a), except that such notice need be given only
once not less than five (5) days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of any adjourned meeting shall state expressly the percentage, as provided above, of the principal amount of the
Outstanding Securities of such series which shall constitute a quorum. Except as limited by the proviso to Section 902, any resolution presented to a meeting or adjourned meeting duly reconvened at which a quorum is present as aforesaid may be
adopted by the affirmative vote of the Holders of a majority in aggregate principal amount of the Outstanding Securities of that series represented at such meeting;
provided
,
however
, that, except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action which this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage,
which is less than a majority, in principal amount of the Outstanding Securities of a series may be adopted at a meeting or an adjourned meeting duly reconvened and at which a quorum is present as aforesaid by the affirmative vote of the Holders of
such specified percentage in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision
taken at any meeting of Holders of Securities of any series duly held in accordance with this Section shall be binding on all the Holders of Securities of such series and the related coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if any action is to be taken at a meeting of Holders of Securities of
any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that this Indenture expressly provides may be made, given or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and one or more additional series:
(i) there shall be no
minimum quorum requirement for such meeting; and
(ii) the principal amount of the Outstanding Securities of such series that vote in
favor of such request, demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.
57
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of Meetings.
(a) Notwithstanding any provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of a series in regard to proof of the holding of Securities of such series and of the appointment of proxies and in regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by any such regulations, the holding of Securities
shall be proved in the manner specified in Section 104 and the appointment of any proxy shall be proved in the manner specified in Section 104 or by having the signature of the Person executing the proxy witnessed or guaranteed by any
trust company, bank or banker authorized by Section 104 to certify to the holding of Bearer Securities. Such regulations may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without
the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary chairman
of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1502(b), in which case the Company or the Holders of Securities of or within the series calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote of the Persons entitled to vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or proxy shall be entitled to one
vote for each $1,000 principal amount of the Outstanding Securities of such series held or represented by him;
provided
,
however
, that no vote shall be cast or counted at any meeting in respect of any Security challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of the Outstanding Securities of such series represented at the meeting, and the meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of their representatives by proxy and the principal amounts and serial numbers of the Outstanding Securities of such series held or represented by them. The permanent chairman
of the meeting shall appoint two inspectors of votes who shall count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting their verified written reports in duplicate of all votes
cast at the meeting. A record, at least in duplicate, of the proceedings of each meeting of Holders of Securities of any series shall be prepared by the secretary of the meeting and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of the fact, setting forth a copy of the notice of the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. Each copy shall be signed and verified by the affidavits of the permanent chairman and secretary of the meeting and one such copy shall be delivered to the Company and another to the Trustee to be preserved by
the Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so signed and verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Evidence of Action Taken by Holders.
Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Holders of any or all series may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such specified percentage of Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such action shall become effective when such instrument or instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing appointing any such
agent shall be sufficient for any purpose of this Indenture and (subject to Article Six) conclusive in favor of the Trustee and the Company, if made in the manner provided in this Article.
58
SECTION 1508. Proof of Execution of Instruments.
Subject to Article Six, the execution of any instrument by a Holder or his agent or proxy may be proved in accordance with such reasonable
rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
ARTICLE SIXTEEN
SUBORDINATION
SECTION 1601. Agreement to Subordinate.
Except as otherwise provided in a supplemental indenture or pursuant to Section 301, the Company agrees, and each Holder by accepting a
Security agrees, that the indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article, to the prior payment in full of all Senior Debt and that the subordination is for the
benefit of the holders of Senior Debt.
SECTION 1602. Liquidation; Dissolution; Bankruptcy.
Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company or in a bankruptcy, reorganization,
insolvency, receivership or similar proceeding relating to the Company or its property:
(1) holders of Senior Debt shall be entitled to
receive payment in full in cash of the principal of and interest (including interest accruing after the commencement of any such proceeding) to the date of payment on the Senior Debt before Holders shall be entitled to receive any payment of
principal of or interest on the Securities;
(2) until the Senior Debt is paid in full in cash, any distribution to which Holders would be
entitled but for this Article shall be made to holders of Senior Debt as their interests may appear, except that Holders may receive securities that are subordinated to Senior Debt to at least the same extent as the Securities; and
(3) the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate of a bankruptcy
trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution, the holders of Senior Debt and other Company debt, the amount thereof or payable thereon and all other pertinent facts
relating to the Trustee’s obligations under this Article Seventeen.
SECTION 1603. Default on Senior Debt.
The Company may not pay principal of or interest on the Securities and may not acquire any Securities for cash or property other than capital
stock of the Company if:
(1) a default on Senior Debt occurs and is continuing that permits holders of such Senior Debt to accelerate its
maturity, and
(2) the default is the subject of judicial proceedings or the Company receives a notice of the default from a person who
may give it pursuant to Section 1611. If the Company receives any such notice, a similar notice received within nine months thereafter relating to the same default on the same issue of Senior Debt shall not be effective for purposes of this
Section.
The Company may resume payments on the Securities and may acquire them when:
(a) the default is cured or waived, or
59
(b) 120 days pass after the notice is given if the default is not the subject of judicial
proceedings if this Article otherwise permits the payment or acquisition at that time.
SECTION 1604. Acceleration of Securities.
If payment of the Securities is accelerated because of an Event of Default, the Company shall promptly notify holders of Senior Debt of
the acceleration. The Company may pay the Securities when 120 days pass after the acceleration occurs if this Article permits the payment at that time.
SECTION 1605. When Distribution Must Be Paid Over.
If a distribution is made to Holders that because of this Article should not have been made to them, the Holders who receive the distribution
shall hold it in trust for holders of Senior Debt and pay it over to them as their interests may appear.
SECTION 1606. Notice by
Company.
The Company shall promptly notify the Trustee, in writing, and any Paying Agent of any facts known to the Company that would
cause a payment of principal of or interest on Securities to violate this Article.
SECTION 1607. Subrogation.
After all Senior Debt is paid in full and until the Securities are paid in full, Holders shall be subrogated to the rights of holders of
Senior Debt to receive distributions applicable to Senior Debt to the extent that distributions otherwise payable to the Holders have been applied to the payment of Senior Debt. A distribution made under this Article to holders of Senior Debt which
otherwise would have been made to Holders is not, as between the Company and Holders, a payment by the Company on Senior Debt.
SECTION 1608. Relative Rights.
This Article defines the relative rights of Holders and holders of Senior Debt. Nothing in this Indenture shall:
(1) impair, as between the Company and Holders, the obligation of the Company, which is absolute and unconditional, to pay principal of and
interest on the Securities in accordance with their terms;
(2) affect the relative rights of Holders and creditors of the Company other
than holders of Senior Debt; or
(3) prevent the Trustee or any Holder from exercising its available remedies upon an Event of Default,
subject to the rights of holders of Senior Debt to receive distributions otherwise payable to Holders.
If the Company fails because of
this Article to pay principal of or interest on a Security on the due date, the failure is still a default.
SECTION 1609.
Subordination May Not Be Impaired By Company.
No right of any holder of Senior Debt to enforce the subordination of the indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by the Company or by its failure to comply with this Indenture.
SECTION 1610. Distribution or Notice to Representative.
Whenever a distribution is to be made or a notice given to holders of Senior Debt, the distribution may be made and the notice given to their
Representative.
60
SECTION 1611. Rights of Trustee and Paying Agent.
The Trustee or any Paying Agent may continue to make payments on the Securities until a Responsible Officer receives written notice of facts
that would cause a payment of principal of or interest on the Securities to violate this Article. Only the Company, a Representative or a holder of an issue of Senior Debt that has no Representative may give the written notice.
The Trustee has no duty to the holders of Senior Debt other than as created under this Indenture. The Trustee in its individual or any other
capacity may hold Senior Debt with the same rights it would have if it were not Trustee.
The Company’s obligation to pay, and the
Company’s payment of, the amounts required by Section 606 are excluded from the operation of this Article Seventeen.
61
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed by their
respective officers hereunto duly authorized, all as of the day and year first above written.
|
|
|
|
|
TRIUMPH BANCORP, INC.
|
|
|
|
|
By:
|
|
/s/ Aaron P. Graft
|
|
|
|
Name: Aaron P. Graft
|
|
|
|
Title: President and Chief Executive Officer
|
|
|
|
|
|
WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Trustee
|
|
|
|
|
By:
|
|
/s/ Patrick T. Giordano
|
|
Name: Patrick T. Giordano
|
|
Title: Vice President
|
62
EXHIBIT A
FORM OF CERTIFICATION EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED TO RECEIVE BEARER SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below, the above-captioned Securities held by you for our account
(i) are owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to United States federal income taxation regardless of its
source (“
United States person(s)
”), (ii) are owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial institutions, as defined in United States Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as “
financial institutions
”) purchasing for their own account or for resale, or (b) United States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such United States financial institution hereby agrees, on its own behalf or
through its agent, that you may advise
or its agent that such financial institution will provide
a certificate within a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code of 1986, as amended, and the regulations thereunder), or
(iii) are owned by a financial institution for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.1635(c)(2)(i)(D)(7)), and, such financial institution described in clause
(iii) above (whether or not also described in clause (i) or (ii)), certifies that it has not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a person within the United States or its
possessions.
As used herein, “United States” means the United States of America (including the States and the District of
Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your Operating Procedures if any applicable statement herein is not correct on such date, and in the absence of any such notification it may be assumed that this certification
applies as of such date. This certificate excepts and does not relate to [U.S.$] of such interest in the above-captioned Securities in respect of which we are not able to certify and as to which we understand an exchange for an interest in a
permanent global Security or an exchange for and delivery of definitive Securities (or, if relevant, collection of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such proceedings.
Dated:
,
[To be dated no earlier than the 15th day prior to the earlier of (i) the Exchange Date or (ii) the relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
|
|
|
[Name of Person Making Certification]
(Authorized Signatory)
|
|
Name:
Title:
|
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CLEARSTREAM S.A. IN
CONNECTION WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as persons entitled to a portion of the principal amount set forth below (our “
Member Organizations
”) substantially in the form attached hereto, as of the date hereof,
(U.S.$) principal amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents of the United States, domestic partnerships, domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source (“
United States person(s)
”), (ii) is owned by United States person(s) that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “
financial institutions
”) purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial institutions and who hold the Securities through such United States financial institutions on the date hereof (and in either case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent, that we may advise or its agent that
such financial institution will provide a certificate within a reasonable time stating that it agrees to comply with the requirements of Section 165(j)(3)(A), (B), or (C) of the Internal Revenue Code of 1986, as amended, and the
regulations thereunder), or (iii) is owned by a financial institution for purposes of resale during the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and that such financial
institutions described in clause (iii) above (whether or not also described in clause (i) or (ii)) have certified that they have not acquired the Securities for purposes of resale directly or indirectly to a United States person or to a
person within the United States or its possessions.
As used herein, “United States” means the United States of America
(including the States and the District of Columbia); and its “possessions” include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities excepted in the above-referenced certificates of Member Organizations and (ii) as of the date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member Organizations with respect to any portion of the part submitted herewith for exchange (or, if relevant, collection of any interest) are no longer true and cannot be relied upon as
of the date hereof.
We understand that this certification is required in connection with certain tax legislation in the United States. If
administrative or legal proceedings are commenced or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate or a copy thereof to any interested party in such
proceedings.
Dated:
,
[To be
dated no earlier than the earlier of the Exchange Date or the relevant Interest Payment Date occurring prior to the Exchange Date, as applicable]
Exhibit 4.2
TRIUMPH BANCORP, INC.
FIRST SUPPLEMENTAL INDENTURE
dated as of September 30, 2016
to the Indenture
dated
as of September 30, 2016
6.50% Fixed-to-Floating Rate Subordinated Notes due 2026
Wells Fargo Bank, National Association, as Trustee
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST
SUPPLEMENTAL INDENTURE (“
First Supplemental Indenture
”), dated as of September 30, 2016 is between Triumph Bancorp, Inc., a Texas corporation (the “
Company
”), and Wells Fargo Bank, National Association, a national
banking association organized under the laws of the United States, not in its individual capacity but solely as trustee (“
Trustee
”).
RECITALS
WHEREAS
, the Company and
the Trustee have executed and delivered an Indenture, dated as of September 30, 2016 (the “
Base Indenture
” and as supplemented by this First Supplemental Indenture and further supplemented from time to time, the
“
Indenture
”), to provide for the issuance from time to time by the Company of its unsecured subordinated indebtedness to be issued in one or more series as provided in the Indenture;
WHEREAS
, the issuance and sale of Fifty Million Dollars ($50,000,000) aggregate principal amount of a new series of Securities of the Company
designated as its 6.50% Fixed-to-Floating Rate Subordinated Notes due 2026 (the “
Notes
”) have been authorized by resolutions adopted by the Board of Directors of the Company, the Finance Committee of the Board of Directors of the
Company, and the Chief Executive Officer and Chief Financial Officer of the Company;
WHEREAS
, the Company desires to issue and sell Fifty Million
Dollars ($50,000,000) aggregate principal amount of the Notes as of the date hereof;
WHEREAS
, the Company desires to establish the terms of the
Notes;
WHEREAS
, the Company acknowledges that all things necessary to make this First Supplemental Indenture a legal, binding and enforceable
instrument, and to make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the legal, binding and enforceable obligations of the Company, in each case, in accordance with its terms and the terms of the Base
Indenture have been done;
WHEREAS
, the Company has complied with all conditions precedent provided for in the Base Indenture relating to this
First Supplemental Indenture; and
WHEREAS
, the Company has requested that the Trustee execute and deliver this First Supplemental Indenture.
NOW, THEREFORE
, for and in consideration of the premises stated herein and the purchase of the Notes by the Holders thereof, the Company and the
Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the Notes, as follows:
ARTICLE I
SCOPE OF FIRST SUPPLEMENTAL INDENTURE
Section
1.01.
Scope
. This First Supplemental Indenture constitutes a supplement to the Base Indenture and an integral part of the Indenture and shall be read together with the Base Indenture as though all the provisions thereof
- 1 -
are contained in one instrument. Except as expressly amended by the First Supplemental Indenture, the terms and provisions of the Base Indenture shall remain in full force and effect.
Notwithstanding the foregoing, this First Supplemental Indenture shall only apply to the Notes.
ARTICLE II
DEFINITIONS
Section 2.01.
Definitions and
Other Provisions of General Application
. For all purposes of this First Supplemental Indenture unless otherwise specified herein:
(a) all terms
used in this First Supplemental Indenture which are not otherwise defined herein shall have the meanings they are given in the Base Indenture;
(b) the
provisions of general application stated in Sections 102 through 115 of the Base Indenture shall apply to this First Supplemental Indenture, except that the words “
herein
,” “
hereof
,” “
hereto
” and
“
hereunder
” and other words of similar import refer to this First Supplemental Indenture as a whole and not to the Base Indenture or any particular Article, Section or other subdivision of the Base Indenture or this First
Supplemental Indenture;
(c) Section 101 of the Base Indenture is amended and supplemented, solely with respect to the Notes, by inserting the following
additional defined terms in their appropriate alphabetical positions:
“Calculation Agent”
means Wells Fargo Bank,
National Association, or any other successor appointed by the Trustee, acting as calculation agent in accordance with Section 3.02(e)(iv).
“
Designated LIBOR Page
” means the display on Reuters, or any successor service, on page LIBOR01, or any other page as may
replace that page on that service, for the purpose of displaying the London interbank rates for U.S. dollars.
“Federal
Reserve”
has the meaning provided in the definition of “Tier 2 Capital Event.”
“Fixed Rate Interest Payment
Date”
has the meaning provided in Section 3.02(e)(i).
“Fixed Rate Period”
has the meaning provided in Section
3.02(e)(i).
“Fixed Rate Regular Record Date”
has the meaning provided in Section 3.02(e)(i).
“Floating Rate Interest Payment Date”
has the meaning provided in Section 3.02(e)(ii).
“Floating Rate Period”
has the meaning provided in Section 3.02(e)(ii).
“Floating Rate Regular Record Date”
has the meaning provided in Section 3.02(e)(ii).
“Interest Payment Date”
has the meaning provided in Section 3.02(e)(ii).
“Issue Date”
means September 30, 2016.
“
London Banking Day
” means any day on which commercial banks are open for business (including dealings in U.S. dollars) in
London.
“Representative Amount”
has the meaning provided in the definition of “Three-Month LIBOR.”
“Reset Rate Determination Date”
means the second London Banking Day immediately preceding the first day of each applicable
interest period commencing on the first Floating Rate Interest Payment Date.
“Tax Event”
shall mean the receipt by the
Company of an opinion of independent tax counsel to the effect that, as a result of (a) an amendment to, or change (including any announced prospective change) in, the
- 2 -
laws or any regulations of the United States or any political subdivision or taxing authority, or (b) any official administrative pronouncement or judicial decision interpreting or applying such
laws or regulations, which amendment or change becomes effective or which pronouncement or decision is announced on or after the date of the issuance of the Notes, there is more than an insubstantial risk that the interest payable on the Notes is
not, or within 90 days of receipt of such opinion of tax counsel, will not be, deductible by the Company, in whole or in part, for U.S. federal income tax purposes.
“TBK Bank”
shall mean TBK Bank, SSB, a Texas state savings bank.
“Tier 2 Capital Event”
shall mean the receipt by the Company of an opinion of independent bank regulatory counsel to the
effect that, as a result of (a) any amendment to, or change (including any announced prospective change) in, the laws or any regulations thereunder of the United States or any rules, guidelines or policies of an applicable regulatory authority for
the Company or (b) any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations, which amendment or change is effective or which pronouncement or decision is announced on or after the date of
original issuance of the Notes, the Notes do not constitute, or within 90 days of the date of such opinion will not constitute, Tier 2 capital (or its then equivalent if the Company were subject to such capital requirement) for purposes of capital
adequacy guidelines of the Board of Governors of the Federal Reserve System (the “
Federal Reserve
”) (or any successor regulatory authority with jurisdiction over bank holding companies), as then in effect and applicable to the
Company that would preclude the Notes from being included as Tier 2 capital.
“Three-Month LIBOR”
means, for any interest
period, the offered rate for deposits in U.S. dollars having a maturity of three months that appears on the Designated LIBOR Page as of 11:00 a.m., London time, on the Reset Rate Determination Date related to such interest period. If such rate does
not appear on such page at such time, then the Calculation Agent will request the principal London office of each of four major reference banks in the London interbank market, selected by the Company for this purpose and whose names and contact
information will be provided by the Company to the Calculation Agent, to provide such bank’s offered quotation to prime banks in the London interbank market for deposits in U.S. dollars with a term of three months as of 11:00 a.m., London time,
on such Reset Rate Determination Date and in a principal amount equal to an amount for a single transaction in U.S. dollars in the relevant market at the relevant time as determined by the Company and provided to the Calculation Agent (a
“
Representative Amount
”). If at least two such quotations are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean of such quotations. If fewer than two
such quotations are provided, the Calculation Agent will request each of three major banks in the City of New York selected by the Company for this purpose and whose names and contact information will be provided by the Company to the Calculation
Agent, to provide such bank’s rate for loans in U.S. dollars to leading European banks with a term of three months as of approximately 11:00 a.m., New York City time, on such Reset Rate Determination Date and in a Representative Amount. If at
least two such rates are so provided, Three-Month LIBOR for the interest period related to such Reset Rate Determination Date will be the arithmetic mean of such quotations. If fewer than two such rates are so provided, then Three-Month LIBOR for
the interest period related to such Reset Rate Determination Date will be set to equal the Three-Month LIBOR for the immediately preceding interest period or, in the case of the interest period commencing on the first Floating Rate Interest Payment
Date, 1.155%. All percentages used in or resulting from any calculation of Three-Month LIBOR will be rounded, if necessary, to the nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%. Notwithstanding the
foregoing, in the event that Three-Month LIBOR as determined in accordance with this definition is less than zero, Three-Month LIBOR for such interest period shall be deemed to be zero.
(d) Section 101 of the Base Indenture is amended and supplemented, solely with respect to the Notes, by replacing the corresponding defined term in the Base
Indenture with the following defined terms:
“Senior Debt”
means the principal, premium, if any, unpaid interest
(including interest accruing on or after the filing of any petition in bankruptcy or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement
and indemnification obligations, and all other amounts payable under or in respect of the following
- 3 -
indebtedness of the Company for money borrowed, whether any such indebtedness exists as of the date of the Indenture or is created, incurred, assumed or guaranteed after such date: (i) any debt
(a) for money borrowed by the Company, or (b) evidenced by a bond, note, debenture, or similar instrument (including purchase money obligations) given in connection with the acquisition of any business, property or assets, whether by purchase,
merger, consolidation or otherwise, but shall not include any account payable or other obligation created or assumed in the ordinary course of business in connection with the obtaining of materials or services, or (c) which is a direct or indirect
obligation which arises as a result of banker’s acceptances or bank letters of credit issued to secure obligations of the Company, or to secure the payment of revenue bonds issued for the benefit of the Company whether contingent or otherwise;
(ii) the obligation of the Company as lessee under any lease of property which is reflected on the Company’s balance sheet as a capitalized lease; (iii) obligations to general and trade creditors; (iv) an obligation arising from direct credit
substitutes; (v) any obligation associated with derivative products such as interest and foreign exchange rate contracts, commodity contracts and similar arrangements; (vi) all obligations of the type referred to in the foregoing of other Persons
for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise, whether or not classified as a liability on a balance sheet prepared in accordance with accounting principles generally accepted in the United States;
and (vii) any deferral, amendment, renewal, extension, supplement or refunding of any liability of the kind described in any of the foregoing. Senior Debt excludes: (w) any such indebtedness, obligation or liability referred to above as to
which, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, it is provided that such indebtedness, obligation or liability is not superior in right of payment to the Notes, or ranks pari passu with the
Notes; (x) any such indebtedness, obligation or liability which is subordinated to indebtedness of the Company to substantially the same extent as or to a greater extent than the Notes are subordinated; (y) any indebtedness to a subsidiary of the
Company; and (z) the Notes. Notwithstanding the foregoing, and for the avoidance of doubt, if the Federal Reserve (or other competent regulatory agency or authority) promulgates any rule or issues any interpretation that defines general
creditor(s), the main purpose of which is to establish criteria for determining whether the subordinated debt of a financial or bank holding company is to be included in its capital, then the term “general creditors” as used herein will
have the meaning as described in that rule or interpretation.
ARTICLE III
FORM AND TERMS OF THE Notes
Section 3.01.
Form and Dating
.
(a) The Notes shall be substantially in the form of
Exhibit A
attached hereto. The Notes shall be executed on behalf of
the Company by its Chairman of the Board, its Chief Executive Officer, Chief Financial Officer, its President, one of its Executive Vice Presidents, one of its Senior Vice Presidents, one of its Vice Presidents or its Treasurer, attested by its
Secretary or one of its Assistant Secretaries. The Notes may have a legend or legends or endorsements as may be required to comply with any law or with any rules of any securities exchange or usage. The Notes shall be dated the date of their
authentication.
(b) The terms contained in the Notes shall constitute, and are hereby expressly made, a part of the Indenture as supplemented by this
First Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this First Supplemental Indenture, expressly agree to such terms and provisions and to be bound thereby.
Section 3.02.
Terms of the Notes
. The following terms relating to the Notes are hereby established:
(a)
Title
. The Notes shall constitute a series of Securities having the title “Triumph Bancorp, Inc. 6.50% Fixed-to-Floating Rate
Subordinated Notes due 2026” and the CUSIP number 89679E AA0.
(b)
Principal Amount
. The aggregate principal amount of the Notes that may
be authenticated and delivered under the Indenture, as amended hereby, shall be Fifty Million Dollars ($50,000,000) on the Issue Date. Provided that no Event of Default has occurred and is continuing with respect to the Notes, the Company may,
from time to time, without notice to or the consent of the holders of the Notes, create and issue further notes ranking equally with the Notes and with identical terms in all respects (or in all respects except for the offering price, the payment of
interest
- 4 -
accruing prior to the issue date of such further notes or except for the first payment of interest following the issue date of such further notes) in order that such further notes may be
consolidated and form a single series with the Notes and have the same terms as to status, redemption or otherwise as the Notes; provided however, that a separate CUSIP number will be issued for any such additional notes unless such additional notes
are fungible with the Notes for U.S. federal income tax purposes, subject to the procedures of the DTC.
(c)
Person to Whom Interest is
Payable
. Interest payable, and punctually paid or duly provided for, on any Interest Payment Date will be paid to the Person in whose name the Notes are registered for such interest at the close of business on the 15
th
day of the month immediately preceding the applicable Interest Payment Date, whether or not such day is a Business Day. Any such interest which is payable, but not so punctually paid or duly
provided for on any Interest Payment Date shall cease to be payable to the Holder on such relevant record date by virtue of having been a Holder on such date, and such defaulted interest may be paid by the Company to the Person in whose name the
Note 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 whereof shall be given to Holders of Notes of this series not less than 10 days prior to such special
record date that complies with Section 307 of the Base Indenture, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes may be listed and upon such notice as may be
required by such exchange and in compliance with the Base Indenture. However, interest that is paid on the Maturity Date will be paid to the person to whom the principal will be payable.
(d)
Maturity Date
. The entire outstanding Principal of the Notes shall be payable on September 30, 2026.
(e)
Interest
.
(i) The Notes will bear
interest at a fixed rate of 6.50% per annum from and including September 30, 2016 to, but excluding, September 30, 2021 (the
“Fixed Rate Period”
), or earlier redemption. Interest accrued on the Notes during the Fixed Rate
Period will be payable semi-annually in arrears on March 30 and September 30 of each year, commencing on March 30, 2017 (each such date a
“Fixed Rate Interest Payment Date”
) through but excluding the maturity date or the
date of earlier redemption. The interest payable during the Fixed Rate Period will be paid to each holder in whose name a Note is registered at the close of business on the fifteenth day (whether or not a Business Day) of the month immediately
preceding the applicable Fixed Rate Interest Payment Date (each such date, a
“Fixed Rate Regular Record Date”
).
(ii) The
Notes will bear a floating interest rate from and including September 30, 2021 to the Maturity Date or Redemption Date (the
“Floating Rate Period”
). The floating interest rate will be reset quarterly, and the interest rate for any
Floating Rate Period shall be equal to Three-Month LIBOR plus 5.345%. During the Floating Rate Period, interest on the Notes will be payable quarterly in arrears on March 30, June 30, September 30, and December 30 of each year commencing on
September 30, 2021 through the Maturity Date or Redemption Date (each such date, a
“Floating Rate Interest Payment Date”
, together with a Fixed Rate Interest Payment Date, an
“Interest Payment Date”
). The interest
payable during the Floating Rate Period will be paid to each holder in whose name a Note is registered at the close of business on the fifteenth day (whether or not a Business Day) of the month immediately preceding the applicable Floating Rate
Interest Payment Date (each such date, a
“Floating Rate Regular Record Date”
).
(iii) The amount of interest payable on
any Fixed Rate Interest Payment Date during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months up to, but excluding September 30, 2021, and, the amount of interest payable on any Floating Rate
Interest Payment Date during the Floating Rate Period will be computed on the basis of a 360-day year and the number of days actually elapsed. In the event that any scheduled Interest Payment Date for the Notes falls on a day that is not a
Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date will be treated as being made on the date that the payment was first due and
no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date); provided, that in the event that any scheduled Floating Rate Interest Payment Date falls on a day that is not a Business Day and the next
succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day, and, in each such case, the amounts payable on such Business Day will
include interest accrued to but excluding such Business Day. Dollar amounts resulting from interest calculations will be rounded to the nearest cent, with one-half cent being rounded upward.
- 5 -
(iv) The Company agrees that for so long as any of the Notes are outstanding there will at all
times be an agent appointed to calculate Three-Month LIBOR in respect of each Floating Rate Period (the “
Calculation Agent
”). The calculation of Three-Month LIBOR for each applicable Floating Rate Period by the Calculation Agent
will (in the absence of manifest error) be final and binding. The Calculation Agent shall have all the rights, protections and indemnities afforded to the Trustee under the Base Indenture and hereunder. The Company hereby appoints Wells
Fargo Bank, National Association, as Calculation Agent for the purposes of determining Three-Month LIBOR for each Floating Interest Period and Wells Fargo Bank, National Association accepts the appointment. The Calculation Agent may be removed
by the Company at any time. If the Calculation Agent is unable or unwilling to act as Calculation Agent or is removed by the Company, the Company will promptly appoint a replacement Calculation Agent, which does not control or is not controlled
by or under common control with the Company or its Affiliates. The Calculation Agent may not resign its duties without a successor having been duly appointed; provided, that if a successor Calculation Agent has not been appointed by the Company and
such successor accepted such position within 30 days after the giving of notice of resignation by the Calculation Agent, the resigning Calculation Agent may petition, at the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to such series. The Calculation Agent’s calculation of the amount of any interest payable after the first Reset Rate Determination Date will be maintained on file at the Calculation Agent’s
principal offices.
(f)
Place of Payment of Principal and Interest
. So long as the Notes shall be issued in global form, the Company shall
make, or cause the Paying Agent to make, all payments of principal and interest on the Notes by wire transfer in immediately available funds to DTC or its nominee, in accordance with applicable procedures of DTC. If the Notes are not in global form,
the Company, may, at its option, make, or cause the Paying Agent to make, payments of principal and interest on the Notes by check mailed to the address of the Person specified for payment in accordance with Section 3.02(e)(i) and (e)(ii) above. A
global security with respect to the Notes shall be exchangeable for physical securities of such series only if:
|
|
•
|
|
DTC is at any time unwilling or unable or ineligible to continue as a depository or ceases to be a clearing agency registered under the Exchange Act and a successor depository is not appointed by the Company within 90
days of the date the Company is so notified in writing;
|
|
|
•
|
|
The Company executes and delivers to the Trustee a Company Order to the effect that such global securities shall be so exchangeable (and the Trustee consents thereto); or
|
|
|
•
|
|
An Event of Default has occurred and is continuing with respect to the global securities and a Holder requests such exchange.
|
(g)
Redemption
. The Notes shall be redeemable, in each case, in whole or in part from time to time, at the option of the Company prior to the
Maturity Date beginning with the Interest Payment Date on September 30, 2021, but not prior thereto, and on any Interest Payment Date thereafter subject to obtaining the prior approval of the Federal Reserve to the extent such approval is required
under the rules of the Federal Reserve. The Notes may not otherwise be redeemed prior to the Maturity Date, except that the Company may, at its option, redeem the Notes before the Maturity Date in whole but not in part from time to time, upon
the occurrence of a Tier 2 Capital Event or a Tax Event, or if the Company is required to register as an investment company pursuant to the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.). Any such redemption will be at a
Redemption Price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the redemption date fixed by the Company. The provisions of Article Eleven of the Base Indenture shall apply to
any redemption of the Notes pursuant to this Section 3. Any partial redemption will be made in accordance with DTC’s applicable procedures among all of the Holders of the Notes. If any Note is to be redeemed in part only, the notice of
redemption relating to such Note shall state that it is a partial redemption and the portion of the principal amount thereof to be redeemed. The Notes are not subject to redemption or prepayment at the option of the Holders.
(h)
Sinking Fund
. There shall be no sinking fund for the Notes.
- 6 -
(i)
Denomination
. The Notes and any beneficial interest in the Notes shall be in minimum
denominations of $1,000 and integral multiples of $1,000 in excess thereof.
(j)
Currency of the Notes
. The Notes shall be denominated, and
payment of principal and interest of the Notes shall be payable in, the currency of the United States of America.
(k)
Acceleration
. Neither
the Trustee nor the Holders of the Notes shall have the right to accelerate the maturity of the Notes unless there is an Event of Default specified under clause (5) or (6) Section 501 (as amended herein) of the Base Indenture. If an Event of Default
specified in clause (5) or (6) of Section 501 (as amended herein) of the Base Indenture occurs, then the principal amount of all the Notes, together with any premium, Make-Whole Amount, accrued and unpaid interest and Additional Amounts, if any,
thereon, shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable in accordance with the provisions of Section 502 of the Base Indenture.
(l)
Stated Maturity
. The principal of the Notes shall be payable on September 30, 2026 subject to acceleration as provided under the Indenture.
(m)
Registered Form
. The Notes shall be issuable as registered global Securities, and DTC (or any successor thereto or successor depository
appointed by the Company within 90 days of the termination of services of DTC) shall be the depository for the Notes.
(n)
Additional Event of
Default
. In addition to the Events of Default provided for in Section 501 of the Base Indenture, an Event of Default shall occur with respect to the Notes in the event that a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that appoints a Custodian for the Company’s principal banking subsidiary (which, for the avoidance of doubt, as of the date of this First Supplemental Indenture, is TBK Bank). Such Event of Default shall be treated for
all purposes under the Indenture as if it were an Event of Default under Section 501(6) of the Base Indenture.
(o)
Acceleration of Maturity,
Rescission and Annulment
. Section 502 of the Base Indenture shall apply to the Notes, except that the first paragraph thereof shall be substituted with the following:
“If an Event of Default under clause (5) or (6) of Section 501, then the principal amount of all the Notes, together with any premium, Make-Whole Amount,
accrued and unpaid interest and Additional Amounts, if any, thereon, shall automatically, and without any declaration or other action on the part of the Trustee or any Holder, become immediately due and payable. The Maturity of the Notes shall
not otherwise be accelerated as a result of an Event of Default.”
(p)
Ranking
. The Notes shall rank junior to and shall be subordinated
to all Senior Debt of the Company, whether existing as of the date of this First Supplemental Indenture, or hereafter issued or incurred, including all indebtedness relating to money owed to general creditors and trade creditors. By their
terms, the Company’s Floating Rate Junior Subordinated Notes due 2035, Floating Rate Junior Subordinated Note due 2037, Junior Subordinated Debt Securities due July 7, 2036 and Unsecured Junior Subordinated Deferrable Interest Notes due
September 15, 2033 rank junior and are subordinated to the notes. Subject to the terms of the Base Indenture, if the Trustee or any holder of any of the Notes receives any payment or distribution of the Company’s assets in contravention of the
subordination provisions applicable to the Notes before all Senior Debt is paid in full in cash, property or securities, including by way of set-off or any such payment or distribution that may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the Notes, then such payment or distribution will be held in trust for the benefit of holders of Senior Debt or their representatives to the extent necessary to make payment
in full in cash or payment satisfactory to the holders of Senior Debt of all unpaid Senior Debt.
(q)
No Collateral
. The Notes shall not be
entitled to the benefit of any security interest in, or collateralization by, any rights, property or interest of the Company.
(r)
Satisfaction and
Discharge
. Article IV of the Base Indenture shall apply to the Notes.
(s)
Additional Terms
. Other terms applicable to the Notes
are as otherwise provided for in the Base Indenture, as supplemented by this First Supplemental Indenture.
- 7 -
ARTICLE IV
ADDITIONAL PROVISIONS
Section 4.01.
Additional Provisions
.
(a) Section 106 of the Base Indenture shall apply to the Notes, provided that, with respect to the Notes, the following text
shall be deemed to be inserted at the end of such Section: “Any notices required to be given to Holders will also be given to the Trustee.”
(b)
Section 901 of the Base Indenture shall apply to the Notes, provided that, with respect to the Notes, the following text shall be deemed to be inserted at the end of such Section:
“Not in limitation of the foregoing, without the consent of any Holder of Notes, the Company and the Trustee may amend or supplement the
Indenture or the Notes to conform the terms of the Indenture and the Notes to the description of the Notes in the prospectus supplement dated September 30, 2016 relating to the offering of the Notes.”
ARTICLE V
MISCELLANEOUS
Section 5.01.
Trust Indenture Act
. This First Supplemental Indenture is subject to the provisions of the Trust Indenture Act that are required to
be part of the Indenture and shall, to the extent applicable, be governed by such provisions. If any provision of this First Supplemental Indenture limits, qualifies, or conflicts with a provision of the Trust Indenture Act that is required
under such act to be a part of and govern this First Supplemental Indenture, the latter provision shall control.
Section 5.02.
Communications by
Holders with Other Holders
. Holders of Notes may communicate pursuant to TIA Section 312(b) with other Holders of Notes with respect to their rights under this Indenture or the Notes. The Company, the Trustee, the Registrar and anyone else
shall have the protection of TIA Section 312(c).
SECTION 5.02.
GOVERNING LAW
. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST
SUPPLEMENTAL INDENTURE AND THE NOTES.
Section 5.03.
Duplicate Originals
. The parties may execute any number of counterparts of this First
Supplemental Indenture. Each executed copy shall be an original, but all of them together represent the same agreement.
Section 5.04.
Severability
. In case any provision in this First Supplemental Indenture or 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 5.05.
Ratification
. The Base Indenture, as supplemented and amended by this First Supplemental Indenture, is in all
respects ratified and confirmed. The Base Indenture and this First Supplemental Indenture shall be read, taken and construed as one and the same instrument. All provisions included in this First Supplemental Indenture supersede any
conflicting provisions included in the Base Indenture unless not permitted by law. The Trustee accepts the trusts created by the Base Indenture, as supplemented by this First Supplemental Indenture, and agrees to perform the same upon the terms
and conditions of the Base Indenture, as supplemented by this First Supplemental Indenture.
- 8 -
Section 5.06.
Effectiveness
. The provisions of this First Supplemental Indenture shall become
effective as of the date hereof.
Section 5.07.
Successors
. All agreements of the Company in this First Supplemental Indenture shall bind its
successors. All agreements of the Trustee in this First Supplemental Indenture shall bind its successors.
Section 5.08.
Indenture and Notes
Solely Corporate Obligations
. No recourse will be available for the payment of principal of, or interest or any additional amounts on, any Note, for any claim based thereon, or otherwise in respect thereof, against any of the Trustee, any
shareholder, employee, officer or director, as such, past, present or future, of Triumph or of any successor entity; it being expressly understood that all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this First Supplemental Indenture and the issue of the Notes.
Section 5.09.
Trustee’s
Disclaimer
. The recitals contained herein shall be taken as the statements of the Company and the Trustee assumes no responsibility for their correctness. The Trustee shall not be responsible in any manner whatsoever for or in respect
of the validity or sufficiency of this First Supplemental Indenture, the Notes, or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.
Section 5.10.
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, are 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 First 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.
[Remainder of page intentionally left blank.]
- 9 -
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of
the date first above written.
|
|
|
|
|
TRIUMPH BANCORP, INC.
|
|
|
|
|
By:
|
|
/s/ Aaron P. Graft
|
|
Name:
|
|
Aaron P. Graft
|
|
Title:
|
|
President and Chief Executive Officer
|
|
|
|
|
|
Attest
|
|
|
|
|
By:
|
|
/s/ Adam D. Nelson
|
|
Name:
|
|
Adam D. Nelson
|
|
Title:
|
|
General Counsel
|
[Signature Page to
First Supplemental Indenture]
|
|
|
|
|
Wells Fargo Bank, National Association,
as Trustee
|
|
|
|
|
By:
|
|
/s/ Patrick T. Giordano
|
|
Name:
|
|
Patrick T. Giordano
|
|
Title:
|
|
Vice President
|
[Signature Page to
First Supplemental Indenture]
EXHIBIT A
FORM OF NOTE
See
attached.
THIS SECURITY AND THE OBLIGATIONS OF THE COMPANY (AS DEFINED HEREIN) AS EVIDENCED HEREBY (1) ARE NOT DEPOSITS
WITH OR HELD BY THE COMPANY AND ARE NOT INSURED OR GUARANTEED BY ANY FEDERAL AGENCY OR INSTRUMENTALITY, INCLUDING, WITHOUT LIMITATION, THE FEDERAL DEPOSIT INSURANCE CORPORATION, AND (2) ARE SUBORDINATE IN THE RIGHT OF PAYMENT TO THE SENIOR DEBT (AS
DEFINED IN THE INDENTURE IDENTIFIED HEREIN).
GLOBAL NOTE
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 AND
UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR (II) BY A NOMINEE OF THE DEPOSITARY OR
THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER,
EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., 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.
TRIUMPH BANCORP, INC.
6.50% Fixed-to-Floating Rate Subordinated Notes due 2026
|
|
|
|
|
No. 1
|
|
CUSIP: 89679E AA0
|
|
|
|
ISIN: US89679EAA01
|
|
$50,000,000
|
|
|
Triumph Bancorp, Inc., a Texas corporation (hereinafter called the “
Company
,” which term includes any
successor corporation under the Indenture hereinafter referred to), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the principal sum of $50,000,000 (or such other amount as set forth in the Schedule of
Increases or Decreases in Global Note attached hereto) on September 30, 2026 (such date is hereinafter referred to as the “
Stated Maturity Date
”), unless redeemed prior to such date, and to pay interest thereon (i) from, and
including, September 30, 2016, to, but excluding, September 30, 2021, unless redeemed prior to such date, at a rate of 6.50% per annum, semi-annually in arrears on March 30 and September 30 of each year, commencing March 30, 2017 (each
such date, a “
Fixed Rate Interest Payment Date
,” with the period from, and including, September 30, 2016 to, but excluding, the first Fixed Rate Interest Payment Date and each successive period from, and including, a Fixed Rate
Interest Payment Date to, but excluding, the next Fixed Rate Interest Payment Date being a “
Fixed Rate Period
”) and (ii) from, and including, September 30, 2021 to, but excluding, the Stated Maturity Date, unless redeemed subsequent
to September 30, 2021 but prior to the Stated Maturity Date, at a rate equal to Three-month LIBOR, reset quarterly, plus 5.345%, payable quarterly in arrears on March 30, June 30, September 30, and December 30 of each year through the Stated
Maturity Date or earlier redemption date (each, a “
Floating Rate Interest Payment Date
,” and together with the Fixed Rate Interest Payment Dates, the “
Interest Payment Dates
,” with the period from, and including,
September 30, 2021 to, but excluding, the first Floating Rate Interest Payment Date and each successive period from, and including a Floating Rate Interest Payment Date to, but excluding, the next Floating Rate Interest Payment Date being a
“
Floating Rate Period
”). The amount of interest payable on any Fixed Rate Interest Payment Date during the Fixed Rate Period will be computed on the basis of a 360-day year consisting of twelve 30-day months up to, but excluding
September 30, 2021, and, the amount of interest payable on any Floating Rate Interest Payment Date during the Floating Rate Period will be computed on the basis of a 360-day year and the number of days actually elapsed. In the event that any
scheduled Interest Payment Date for this Note falls on a day that is not a Business Day, then payment of interest payable on such Interest Payment Date will be paid on the next succeeding day which is a Business Day (any payment made on such date
will be treated as being made on the date that the payment was first due and no interest on such payment will accrue for the period from and after such scheduled Interest Payment Date); provided, that in the event that any scheduled Floating Rate
Interest Payment Date falls on a day that is not a Business Day and the next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Interest Payment Date will be accelerated to the immediately preceding Business Day,
and, in each such case, the amounts payable on such Business Day will include interest accrued to but excluding such Business Day. All percentages used in or resulting from any calculation of Three-month LIBOR shall be rounded, if necessary, to the
nearest one hundred-thousandth of a percentage point, with 0.000005% rounded up to 0.00001%.
Payment of the principal of and interest on this Note will
be made at the office or agency of the Company maintained for that purpose, which shall initially be the Corporate Trust Office of the Trustee, in such currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts.
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.
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.
[Remainder of this page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by its duly authorized
officer.
|
|
|
|
|
TRIUMPH BANCORP, INC.
|
|
|
|
|
By:
|
|
|
|
|
|
Name:
|
|
|
|
Title:
|
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein and referred to in the within-mentioned Indenture.
Date of authentication:
|
|
|
|
|
WELLS FARGO BANK, NATIONAL ASSOCIATION
, as Trustee
|
|
|
|
|
By:
|
|
|
|
|
|
Authorized Signatory
|
REVERSE OF NOTE
TRIUMPH BANCORP, INC.
6.50% Fixed-to-Floating Rate Subordinated Notes due 2026
This Note is one of a duly authorized issue of Securities of the Company of a series designated as the “Triumph Bancorp, Inc. 6.50% Fixed-to-Floating
Rate Subordinated Notes due 2026” (herein called the “
Notes
”) initially issued in an aggregate principal amount of $50,000,000 on September 30, 2016. Such series of Securities has been established pursuant to, and is one of an
indefinite number of series of subordinated debt securities of the Company issued or issuable under and pursuant to the Indenture, dated as of September 30, 2016 (the “
Base Indenture
”), between the Company and Wells Fargo Bank,
National Association, as Trustee (herein called the “
Trustee
,” which term includes any successor trustee), as supplemented and amended by the First Supplemental Indenture between the Company and the Trustee, dated as of September
30, 2016 (the “
First Supplemental Indenture
,” and the Base Indenture as supplemented and amended by the First Supplemental Indenture, the “
Indenture
”), to which Indenture and any other 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 Persons in whose names Notes are registered from time to time and of the terms
upon which the Notes are, and are to be, authenticated and delivered. The terms, conditions and provisions of the Notes are those stated in the Indenture, those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended
(the “
Trust Indenture Act
”), and those set forth in this Note. To the extent that the terms, conditions and provisions of this Note modify, supplement or are inconsistent with those of the Indenture, then the terms, conditions and
other provisions of this Note shall govern to the extent that such terms, conditions and other provisions of this Note are not inconsistent with the terms, conditions and provisions made part of the Indenture by reference to the Trust Indenture Act.
All capitalized terms used in this Note and not defined herein that are defined in the Indenture shall have the meanings assigned to them in the
Indenture. To the extent that any capitalized term used in this Note and defined herein is also defined in the Indenture but conflicts with the definition provided in the Indenture, the definition of the capitalized term in this Note shall control.
The indebtedness of the Company evidenced by the Notes, including the principal thereof, premium, if any, Additional Amounts, if any, and interest
thereon, is, to the extent and in the manner set forth in the Indenture, subordinate and subject in right of payment to the prior payment in full of all Senior Debt, whether outstanding at the date hereof or hereafter incurred, and on the terms and
subject to the terms and conditions set forth in the Indenture, and shall rank
pari passu
in right of payment with all other Securities and with all other unsecured subordinated indebtedness of the Company and not by its terms subordinate and
subject in right of payment to the prior payment in full of debentures, notes, bonds or other evidences of indebtedness of types that include the Notes. Each Holder of this Note, by the acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and authorizes and directs the Trustee on his behalf to take such actions as may be necessary or appropriate to effectuate the subordination so provided.
The Notes are intended to be treated as Tier 2 capital (or its then-equivalent if the Company were subject to such capital requirement) for purposes of
capital adequacy guidelines of the Board of Governors of the Federal Reserve System (or any successor regulatory authority with jurisdiction over bank holding companies) (the “
Federal Reserve
”) as then in effect and applicable to
the Company. If an Event of Default with respect to Notes shall occur and be continuing, the principal and interest owed on the Notes shall only become due and payable in accordance with the terms and conditions set forth in Article Five of the Base
Indenture and Section 3.02(k) and (o) of the First Supplemental Indenture.
Accordingly, the Holder of this Note has no right to accelerate the maturity of this Note in the event that the Company fails to pay interest on any of the Notes, or fails
to perform any other obligations under the Notes or in the Indenture that are applicable to the Notes.
The Company may, at its option, redeem the
Notes, in whole or in part, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest (the “
Redemption Price
”) to but excluding, the date of redemption (the
“
Redemption Date
”), on any Interest Payment Date on or after September 30, 2021. The Company may also, at its option, redeem the Notes before the Stated Maturity Date, in whole, but not in part, at any time, upon the occurrence of a
Tier 2 Capital Event, a Tax Event or if the Company is required to
register as an investment company pursuant to the Investment Company Act of 1940, as amended. Any such redemption will be at a redemption price equal to the Redemption Price to, but excluding,
the Redemption Date fixed by the Company. No redemption of the Notes by the Company prior to the Stated Maturity Date shall be made without the prior approval of the Federal Reserve if such prior approval is or will be required at the scheduled
Redemption Date. The provisions of Article Eleven of the Base Indenture and Section 3.02(g) of the First Supplemental Indenture shall apply to the redemption of any Notes by the Company.
The Notes are not entitled to the benefit of any sinking fund. The Notes are not convertible into or exchangeable for any other securities or property of the
Company or any Subsidiary of the Company.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification
of the rights and obligations of the Company and the rights of the Holders of the Notes at any time by the Company and the Trustee with the consent of the Holders of at least a majority in principal amount of the Outstanding Notes. The Indenture
also contains provisions permitting the Holders of specified percentages in principal amount of the Notes at the time Outstanding, on behalf of the Holders of all Notes, to waive certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange therefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Register described in Section 305 of the Base Indenture, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and
interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of 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, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in minimum denominations of $1,000 and any integral multiples of $1,000 in excess thereof.
The Company and 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 is overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the contrary.
This Security is a global note, represented by one or more permanent global certificates registered in the name of the nominee of The Depository Trust
Company (each a “
Global Note
” and collectively, the “
Global Notes
”). Accordingly, unless and until it is exchanged for individual certificates, this Note may not be transferred except as a whole by The Depository
Trust Company (the “
Depositary
”) to a nominee of such Depositary or by a nominee of such Depositary or by the Depositary or any nominee to a successor Depositary or any nominee of such successor. Ownership of beneficial interests in
this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of persons that have accounts with the Depositary
(“
Participants
”)) and the records of Participants (with respect to interests of persons other than Participants). Beneficial interests in Notes owned by persons that hold through Participants will be evidenced only by, and transfers
of such beneficial interests with such Participants will be effected only through, records maintained by such Participants. Except as provided below, owners of beneficial interests in this Note will not be entitled to have any individual
certificates and will not be considered the owners or Holders thereof under the Indenture.
Except in the limited circumstances set forth in the
Base Indenture, Participants and owners of beneficial interests in the Global Notes will not be entitled to receive Notes in the form of Individual Securities and will not be considered Holders of Notes. None of the Company, the Trustee, the
Registrar, the Paying Agent or any of their respective agents will be liable for any delay by the Depositary, its nominee or any direct or indirect Participant in identifying the beneficial owners of the related Notes. The Company, the Trustee, the
Registrar, the Paying Agent and each of their respective agents may conclusively rely on, and will be protected in relying on, instructions from the Depositary or its nominee for all purposes, including with respect to the registration and delivery,
and the respective principal amounts, of the Notes to be issued.
Except as provided in Section 3.02 of the First Supplemental Indenture, beneficial owners of Global Notes will
not be entitled to receive physical delivery of Notes in the form of Individual Securities, and no Global Note will be exchangeable except for another Global Note of like denomination and tenor to be registered in the name of the Depositary or its
nominee. Accordingly, each person owning a beneficial interest in a Global Note must rely on the procedures of the Depositary and, if such person is not a Participant, on the procedures of the Participant through which such person owns its interest,
to exercise any rights of a Holder under the Notes.
The laws of some jurisdictions may require that certain purchasers of securities take physical
delivery of those securities in definitive form. Accordingly, the ability to transfer interests in the Notes represented by a Global Note to those persons may be limited. In addition, because the Depositary can act only on behalf of its
Participants, who in turn act on behalf of persons who hold interests through Participants, the ability of a person having an interest in Notes represented by a Global Note to pledge or transfer such interest to persons or entities that do not
participate in the Depositary’s system, or otherwise to take actions in respect of such interest, may be affected by the lack of a physical definitive security in respect of such interest. None of the Company, the Trustee, the Paying Agent and
the Registrar will have any responsibility or liability for any aspect of the records relating to or payments made on account of Notes by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary relating to the
Notes.
The Trustee will act as the Company’s Paying Agent with respect to the Notes through its Corporate Trust Office presently located at 150
East 42
nd
Street, 40
th
Floor, New York, NY 10017. The Company may at any time rescind the designation of a Paying Agent, appoint a successor
Paying Agent, or approve a change in the office through which any Paying Agent acts.
Notices to the Holders of registered Notes in the form of Individual
Securities will be given to such Holders at their respective addresses in the Register, or in the case of Global Notes, electronic delivery in accordance with DTC’s applicable procedures. The Indenture contains provisions setting forth certain
conditions to the institution of proceedings by the Holders of Notes with respect to the Indenture or for any remedy under the Indenture.
THIS NOTE IS
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
ASSIGNMENT FORM
To assign the within Security, fill in the form below: I or we assign and transfer the within Security to:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Insert assignee’s legal name)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Insert assignee’s social security or tax I.D. number)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Print or type assignee’s name, address and zip code)
|
|
|
and irrevocably appoint the Trustee as agent to transfer this Security on the books of Triumph Bancorp, Inc.. The agent may
substitute another to act for it.
|
|
|
Your Signature:
|
|
|
|
(
Sign exactly as your name appears on the other side of this Security
)
|
|
|
|
Your Name:
|
|
|
|
Date:
|
|
|
|
Signature Guarantee:
|
SIGNATURE GUARANTEE
Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“
STAMP
”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $50,000,000. The following increases or decreases in the principal amount of this Global Note have been
made:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Date
|
|
Amount of
decrease in
principal amount
of this
Global Note
|
|
|
Amount of
increase in
principal amount
of this
Global Note
|
|
|
Principal
amount
of this
Global Note
following such
decrease
or increase
|
|
|
Signature of
authorized
signatory of
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
