Exhibit 1.1
HOME BANCSHARES, INC.
(an
Arkansas corporation)
$300,000,000
5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027
UNDERWRITING AGREEMENT
March 30, 2017
RBC Capital Markets, LLC
Three World Financial Center
200 Vesey Street
New York, New York 10281
As Representative of the several
Underwriters
Ladies and Gentlemen:
Home
BancShares, Inc., an Arkansas corporation (the “
Company
”), proposes to issue and sell to the several underwriters named in Schedule I hereto (the “
Underwriters
”), acting severally and not jointly, the
respective amounts set forth in such Schedule I of $300,000,000 aggregate principal amount of the Company’s 5.625%
Fixed-to-Floating
Rate Subordinated Notes due
2027 (the “
Notes
”). RBC Capital Markets, LLC (“
RBC
”), Sandler O’Neill & Partners, L.P. and Stephens Inc. are the joint book-running managers. RBC has agreed to act as the representative
of the several Underwriters (in such capacity, the “
Representative
”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to a subordinated indenture, to be dated as of the Closing Date (as defined below) (the “
Base
Indenture
”), between the Company and U.S. Bank National Association, as trustee (the “
Trustee
”). Certain terms of the Notes will be established pursuant to a supplemental indenture (the “
Supplemental
Indenture
”) to the Base Indenture (together with the Base Indenture, the “
Indenture
”). The Notes will be issued in book-entry form in the name of Cede & Co., as nominee of The Depository Trust Company
(the “
Depositary
”).
The Company has prepared and filed with the Securities and Exchange Commission (the
“
Commission
”) a registration statement on Form
S-3
(Registration
No. 333-208307),
as amended by the Post-Effective Amendment No. 1
thereto, which contains a base prospectus (the “
Base Prospectus
”), to be used in connection with the public offering and sale of debt securities, including the Notes, and other securities of the Company under the Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Securities Act
”), and the offering thereof from time to time in accordance with Rule 415 under the Securities Act. Such
registration statement, as amended by any post-effective amendments thereto, including the financial statements, exhibits and schedules thereto, in the form in which it became effective under the Securities Act, including any required information
deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under the Securities Act, is called the “
Registration Statement
.” The term “
Prospectus
” shall mean the final prospectus
supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b) after the date and time that this Agreement is executed (the “
Execution Time
”) by the
parties hereto. The term “
Preliminary Prospectus
” shall mean any preliminary prospectus supplement relating to the Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule 424(b). Any
reference herein to the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form
S-3
under the Securities Act prior to 3:00 p.m., New York City time, on March 30, 2017 (the “
Initial Sale Time
”). All references in this Agreement to the Registration Statement, the
Preliminary Prospectus, the Prospectus, or any amendments or supplements to any of the foregoing, shall include any copy thereof 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, the Prospectus or the Preliminary Prospectus shall be deemed to
mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, prior to the
Initial Sale Time; and all references in this Agreement to amendments or supplements to the Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to include the filing of any document under the Securities Exchange Act
of 1934, as amended, and the rules and regulations promulgated thereunder (collectively, the “
Exchange Act
”), which is or is deemed to be incorporated by reference in the Registration Statement, the Prospectus or the
Preliminary Prospectus, as the case may be, after the Initial Sale Time.
This Agreement, the Company’s Articles of Incorporation, as
amended from time to time (collectively, the “
Charter
”), the Company’s Bylaws (the “
Bylaws
”) and the Indenture are referred to herein, collectively, as the “
Operative
Documents
.”
The Company hereby confirms its agreements with the Underwriters as follows:
SECTION 1.
Representations and Warranties of the Company
.
The Company hereby represents, warrants and covenants to each Underwriter as of the date hereof, as of the Initial Sale Time and as of the
Closing Date (in each case, a “
Representation Date
”), as follows:
(a)
Compliance with
Registration Requirements
. The Company meets the requirements for use of Form
S-3
under the Securities Act. The Registration Statement, and any post-effective amendment thereto, have become effective upon
filing under Rule 462(e) under the Securities Act and no stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or, to
the Company’s knowledge, are contemplated or threatened by the Commission, and any request on the part of the Commission for additional information has been complied with. In addition, the Indenture has been duly qualified under the Trust
Indenture Act of 1939, as amended, and the rules and regulations promulgated thereunder (the “
Trust Indenture Act
”).
At the respective times the Registration Statement and any post-effective amendments thereto became effective and at each Representation Date,
the Registration Statement and any amendments thereto (i) complied and will comply in all material respects with the requirements of the Securities Act and the Trust Indenture Act, and (ii) did not and will not contain any untrue statement
of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any amendments or
supplements thereto included or will include an untrue statement of a material fact or omitted or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. Notwithstanding the foregoing, the representations and warranties in this subsection shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment or the Prospectus or any amendments or
supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by any of the Underwriters through the Representative expressly for use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the Representative consists of the information described as such in Section 8 hereof.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the Commission, complied and will comply in all material
respects with the Securities Act, and the Preliminary Prospectus and the Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will, at the time of such delivery, be identical to any electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(b)
Disclosure Package
. The term “
Disclosure Package
” shall mean (i) the
Preliminary Prospectus dated March 28, 2017, (ii) the issuer free writing prospectuses as defined in Rule 433 of the Securities Act (each, an “
Issuer Free Writing Prospectus
”), if any, identified in Annex I hereto,
(iii) 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
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Commission and (iv) any other free writing prospectus that the parties hereto shall hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial Sale
Time, the Disclosure Package did not contain any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
The preceding sentence does not apply to statements in or omissions from the Disclosure Package based upon and in conformity with written information furnished to the Company by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representative consists of the information described as such in Section 8 hereof.
(c)
Incorporated Documents
. The documents incorporated by reference in the Registration Statement, the
Preliminary Prospectus and the Prospectus (i) at the time they were or hereafter are filed with the Commission, complied or will comply in all material respects with the requirements of the Exchange Act and (ii) when read together with the
other information in the Disclosure Package, at the Initial Sale Time, and with the other information in the Prospectus, at the date of the Prospectus and at the Closing Date, did not or 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 the light of the circumstances under which they were made, not misleading.
(d)
Company Is a Well-Known Seasoned Issuer
. (A) At the original effectiveness of the Registration
Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to
Section 13 or 15(d) of the Exchange Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the Securities Act) made any offer relating to the Notes
in reliance on the exemption of Rule 163 of the Securities Act, (D) at the date of this Agreement and (E) at the Initial Sale Time, the Company was and is a “well-known seasoned issuer,” as defined in Rule 405 of the Securities
Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 of the Securities Act, that automatically became effective upon its original filing not more than three years prior to the Execution
Time and automatically became effective upon the filing of the Post-Effective Amendment No. 1; the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf
registration statement form and the Company has not otherwise ceased to be eligible to use the automatic shelf registration form.
(e)
Company Is Not an Ineligible Issuer
. (i) At the time of filing the Registration Statement and any
post-effective amendment thereto and (ii) as of the Execution Time (with such date being used as the determination date for purposes of this clause (ii)), the Company was not and is not an Ineligible Issuer (as defined in Rule 405 of the
Securities Act), without taking account of any determination by the Commission pursuant to Rule 405 of the Securities Act that it is not necessary that the Company be considered an Ineligible Issuer.
(f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the offering of Notes under this Agreement or until any earlier date that the Company notified or notifies the Representative as described in the next sentence, 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 Preliminary Prospectus or the Prospectus. If at any time following issuance of an Issuer Free Writing Prospectus there occurred
or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus, the Company has
promptly notified or will promptly notify the Representative and has promptly amended or supplemented or will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing
two sentences do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and in conformity with information furnished to the Company in writing by any Underwriter through the Representative specifically for use
therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representative consists of the information described as such in Section 8 hereof.
(g)
Investor Presentation
. The written and oral communications made by the Company in connection with its
investor presentation of March 28, 2017 in connection with the offering of the Notes (the “
Investor Presentation
”) did not include any material
non-public
information, did not
contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances in which they were made, not misleading, and did not constitute an offering of the Notes.
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(h)
Distribution of Offering Material by the Company
. The Company
has not distributed and will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’ distribution of the Notes, any offering material in connection with the offering and sale of the Notes other than the
Registration Statement, the Preliminary Prospectus, the Prospectus, any Issuer Free Writing Prospectus reviewed and consented to by the Representative and included in Annex I hereto or any electronic road show or other written communications
reviewed and consented to by the Representative and listed on Annex II hereto (each, a “
Company Additional Written Communication
”). Each such Company Additional Written Communication, when taken together with the Disclosure
Package, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading. The preceding sentence does not apply to statements in or omissions from the Company Additional Written Communication based upon and in conformity with information furnished to the Company in writing by any Underwriter through the
Representative specifically for use therein, it being understood and agreed that the only such information furnished by any Underwriter through the Representative consists of the information described as such in Section 8 hereof.
(i)
No Applicable Registration or Other Similar Rights
. There are no persons with registration or other similar
rights to have any equity or debt securities of the Company registered for sale under the Registration Statement or included in the offering contemplated by this Agreement, except for such rights as have been duly waived.
(j)
The Underwriting Agreement
. This Agreement has been duly authorized, executed and delivered by the Company.
(k)
Authorization of the Indenture
. The Indenture has been duly authorized, and when executed and delivered
in accordance with its terms by each of the parties thereto, will constitute a valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles and except as rights to indemnification may be limited by applicable
federal securities laws. On the Closing Date, the Indenture will conform in all material respects to the requirements of the Trust Indenture Act and the rules and regulations of the Commission applicable to an indenture that is qualified thereunder.
(l)
Authorization of the Notes
. The Notes to be purchased by the Underwriters from the Company are in the
form contemplated by the Indenture, have been duly authorized for issuance and sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly executed by the Company and, when duly executed, authenticated and issued
in the manner provided for in the Indenture and delivered against payment of the purchase price therefor, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as the enforcement thereof may
be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles, and will be entitled to the benefits of the
Indenture.
(m)
Description of the Notes and the Indenture
. The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the Prospectus.
(n)
Accuracy of Statements
. The statements in each of the Disclosure Package and the Prospectus under the
captions “Description of the Notes,” “Certain U.S. Federal Income Tax Considerations” and “Certain ERISA Considerations,” in each case insofar as such statements constitute a summary of the legal matters, documents or
proceedings referred to therein, fairly present and summarize, in all material respects, the matters referred to therein.
(o)
No Material Adverse Change
. Except as described in the Registration Statement, the Disclosure Package and
the Prospectus, since the respective dates as of which information is given in the Registration Statement, the Disclosure Package or the Prospectus, (A) there has been no material adverse change in
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the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its Subsidiaries (as defined in Rule 405 under the Securities Act, the
“
Subsidiaries
”) considered as one enterprise, whether or not arising in the ordinary course of business (a “
Material Adverse Change
”), (B) there have been no 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, and (C) except for regular quarterly dividends on the Company’s
common shares in amounts per share that are consistent with past practice, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class or series of its capital stock.
(p)
Independent Accountants
. BKD, LLP, who have reported on the audited financial statements of the Company and
its consolidated subsidiaries, and whose report with respect to such audited consolidated financial statements is incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, are independent public accountants
with respect to the Company, as required by the Securities Act and the Exchange Act and are an independent registered public accounting firm within the applicable rules and regulations adopted by the Public Company Accounting Oversight Board.
(q)
Financial Statements;
Non-GAAP
Financial Measures
. The financial
statements of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, together with the related schedules and notes, present fairly in all material respects the financial position
of the Company and its consolidated subsidiaries at the dates indicated and the results of operations and the comprehensive income, shareholders’ equity and cash flows of the Company and its consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with U.S. generally accepted accounting principles (“
GAAP
”) applied on a consistent basis throughout the periods involved except as otherwise noted therein. The
selected financial data and the summary financial information, if any, included in the Registration Statement, the Disclosure Package and the Prospectus present fairly the information shown therein and have been compiled on a basis consistent with
that of the audited financial statements included therein. Except as included or incorporated by reference therein, no financial statements or supporting schedules are required to be included or incorporated by reference in the Registration
Statement, the Disclosure Package or the Prospectus under the Securities Act or the Exchange Act. All disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus, if any, regarding
“non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission) comply in all material respects with Regulation G under the Exchange Act and Item 10 of
Regulation
S-K
under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language incorporated by reference in the Registration Statement, the Disclosure Package
and the Prospectus fairly presents the required information and has been prepared in accordance with the Commission’s rules and guidelines applicable thereto.
(r)
Incorporation and Good Standing of the Company and Its Subsidiaries
. Each of the Company and its
Subsidiaries (A) has been duly organized and is validly existing as a corporation or limited liability company (or, in the case of Centennial Bank (the “
Bank
”), as an Arkansas state chartered bank), as applicable, in good
standing under the laws of the jurisdiction of its incorporation or organization, (B) in the case of the Company, is duly registered as a bank holding company under the Bank Holding Company Act of 1956, amended, and (C) has corporate or
limited liability company power, as applicable, and authority to own or lease, as the case may be, and operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and, in the case of the Company, to
enter into and perform its obligations under this Agreement. Each of the Company and each Subsidiary is duly qualified as a foreign corporation or limited liability company, as applicable, 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 for such jurisdictions where the failure to so qualify or to be in good standing would not,
individually or in the aggregate, result in a material adverse effect (A) on the condition, financial or otherwise, or in the earnings, management, business, properties, results of operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its Subsidiaries, considered as one entity or (B) the ability of the Company to perform its obligations under and to consummate the transactions contemplated by this Agreement,
the Indenture and the Notes (a “
Material Adverse Effect
”). All of the issued and outstanding shares of capital stock or other equity interests of each Subsidiary have been duly authorized and validly issued, are fully paid
and (except as to the Bank, as provided by Ark. Code Ann. §
23-48-312)
nonassessable and (except as indicated otherwise on Annex III hereto) are owned by the
Company, directly or through Subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance or
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claim. The Company does not own or control, directly or indirectly, any corporation, association or other entity other than the Subsidiaries listed on Schedule III hereto. The activities of the
Subsidiaries are permitted of subsidiaries of a bank holding company under applicable law and the rules and regulations of the Federal Reserve System set forth in Title 12 of the Code of Federal Regulations. The Bank holds the requisite authority to
operate as an Arkansas state-chartered bank. The Bank is the only depository institution subsidiary of the Company, and the Bank is a member in good standing of the Federal Reserve System. The activities of the Bank are permitted under the laws and
regulations of its jurisdiction of organization.
(s)
Capitalization
. The authorized and issued shares of
capital stock of the Company as of December 31, 2016 are as set forth in the Registration Statement, the Disclosure Package and the Prospectus in the column entitled “Actual” under the caption “Capitalization” (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the Registration Statement, the Disclosure Package and the Prospectus or pursuant to the exercise of convertible
securities or options or the vesting of any equity awards referred to in the Registration Statement, the Disclosure Package and the Prospectus). The outstanding shares of capital stock of the Company have been duly authorized and validly issued and
are fully paid and nonassessable. None of the outstanding shares of capital stock of the Company were issued in violation of the preemptive or other similar rights of any securityholder of the Company or any other entity. The outstanding capital
stock of the Company conforms in all material respects to any description thereof contained in the Registration Statement, the Disclosure Package and the Prospectus and such statements conform in all material respects to the rights set forth in the
instruments defining the same.
(t)
Absence of Violations, Defaults and Conflicts
. Neither the Company nor
any of its Subsidiaries is (A) in violation or in default (or, with the giving of notice or lapse of time or both, would be in default) (“
Default
”) under its Charter, Bylaws, or similar organizational document,
(B) in Default under any indenture, mortgage, loan or credit agreement, deed of trust, note, contract, franchise, lease or other agreement, obligation, condition, covenant 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 of its Subsidiaries is subject (each, an “
Existing Instrument
”) or (C) in violation of any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or any of its Subsidiaries or any of its or their respective properties
(each, a “
Governmental Entity
”), as applicable, except for such Defaults or violations as would not, individually or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its Subsidiaries has
received any written communication from any Governmental Entity asserting that the Company or any Subsidiary is not in compliance with any statute, law, rule, regulation, decision, directive or order except for such noncompliance as would not,
individually or in the aggregate, result in a Material Adverse Effect. The Company’s execution, delivery and performance of this Agreement and consummation of the transactions contemplated hereby, by the Indenture, the Disclosure Package and
the Prospectus (A) have been duly authorized by all necessary corporate action and will not result in any Default under the Charter, Bylaws, or similar organizational document of the Company or any Subsidiary, (B) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering 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, or require the consent of any other party to, any Existing Instrument, and (C) will not result in any violation of any statute, law, rule, regulation, judgment, order or decree applicable to the Company or any of its Subsidiaries
of any Governmental Entity except for such Defaults or violations as would not, individually or in the aggregate, result in a Material Adverse Effect. The Company and its Subsidiaries are not required to obtain consent, approval, authorization or
other order of, or make any registration or filing with, any court or other governmental or regulatory authority or agency in connection with the Company’s execution, delivery or performance of this Agreement or consummation of the transactions
contemplated hereby, by the Indenture, the Disclosure Package or the Prospectus, except such as may be required under the blue sky laws of any jurisdiction and except for the registration of the Notes under the Securities Act and any filing required
to be made on a Current Report on Form
8-K
under the Exchange Act related to the announcement, pricing and closing of the offering of the Notes and such consents, approvals, authorizations, order and
registrations or qualifications as may be required by the Financial Industry Regulatory Authority, Inc. (“
FINRA
”), in each case, in connection with the purchase and distribution of the Notes by the Underwriters in the manner
contemplated herein and in the Registration Statement, the Disclosure Package and the Prospectus, excluding any consent, approval, authorization, filing order, registration or filing the failure of which to obtain or make would not reasonably be
expected to have a Material Adverse Effect. As used herein, a “
Debt Repayment Triggering Event
” means any event or condition
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which gives, or with the giving of notice or lapse of time or both would give, the holder of any note, debenture or other evidence of indebtedness (or any person acting on such holder’s
behalf) issued by the Company, 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.
(u)
Absence of Proceedings
. Except as described in the Registration Statement, the Disclosure Package and the
Prospectus or the documents incorporated by reference therein, there is no action, suit, proceeding, inquiry or investigation before or brought by any Governmental Entity now pending, or, to the knowledge of the Company, threatened, against the
Company or any of its Subsidiaries, which could, singly or in the aggregate, result in a Material Adverse Effect, or which, if decided adversely to the Company or any Subsidiary, would reasonably be expected to materially and adversely affect their
respective properties, assets or operations, or the consummation of the transactions contemplated in the Operative Documents or the performance by the Company of its obligations thereunder. The aggregate of all pending legal or governmental
proceedings to which the Company or any of its Subsidiaries are a party or of which any of their respective properties, assets or operations are the subject which are not described in the Registration Statement, the Disclosure Package and the
Prospectus or the documents incorporated by reference therein, including ordinary routine litigation incidental to the business, would not, singly or in the aggregate, result in a Material Adverse Effect.
(v)
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 any of its or any of its Subsidiary’s principal suppliers, manufacturers, customers or
contractors which could, singly or in the aggregate, result in a Material Adverse Effect.
(w)
Intellectual
Property Rights
. The Company and its Subsidiaries own, license or possess, or can acquire, adequate rights to use all patents, patent rights, inventions, copyrights, know how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks, service marks, trade names or other intellectual property (collectively, “
Intellectual Property
”) necessary to carry on the business now operated by
them, and neither the Company nor any of its Subsidiaries has received any written notice or is otherwise aware of any infringement of or conflict with asserted rights of others with respect to any Intellectual Property or of any facts or
circumstances which would render any Intellectual Property invalid or inadequate to protect the interest of the Company or any of its Subsidiaries therein, and which infringement or conflict, if the subject of an unfavorable decision, ruling or
finding, or invalidity or inadequacy, could, singly or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(x)
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 state, federal or local regulatory agencies or bodies necessary to conduct the business now operated by them,
except where the failure to so possess such Governmental Licenses 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 Governmental
Licenses, except where the failure so to 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 when 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 Governmental Licenses which, if the subject of an unfavorable decision, ruling or finding, would, singly or in the aggregate, result in a Material Adverse Effect. Neither the Company nor any of its
Subsidiaries has failed to file with applicable regulatory authorities any statement, report, information or form required by any applicable law, regulation or order, except where the failure to be in compliance would not, singly or in the
aggregate, have a Material Adverse Effect, all such filings were in material compliance with applicable laws when filed and no material deficiencies have been asserted by any regulatory commission, agency or authority with respect to any such
filings or submissions.
(y)
Title to Properties
. The Company and its Subsidiaries have good and marketable
title to all real property owned by them 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) are described in the Registration Statement, the Disclosure Package and the Prospectus or (B) would not, singly or in
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the aggregate, reasonably be expected to have a Material Adverse Effect. All real property held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are described in the Registration Statement, the Disclosure Package and the Prospectus or the documents incorporated therein by reference or such as would not, individually or in the aggregate, reasonably
be expected to have a Material Adverse Effect.
(z)
Tax Law Compliance
. The Company and its Subsidiaries
have filed all necessary federal, state, local and foreign income and franchise tax returns in a timely manner and have paid all taxes required to be paid by any of them and, if due and payable, any related or similar assessment, fine or penalty
levied against any of them, except for any taxes, assessments, fines or penalties as may be being contested in good faith and by appropriate proceedings, except where a failure to make such filings or payments would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect. The Company has made provisions in the applicable financial statements referred to in Section 1(q) above to the extent required by GAAP in respect of all federal, state, local and
foreign income, franchise and other taxes for all current or prior periods as to which the tax liability of the Company or any of its Subsidiaries has not been finally determined.
(aa)
Investment Company Act
. The Company is not, and solely after giving effect to the receipt of payment for
the Notes and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the Disclosure Package and the Prospectus will not be, required to register as an “investment company” within the
meaning of the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder.
(bb)
Insurance
. The Company and its Subsidiaries are insured by recognized, financially sound and reputable
institutions with policies in such amounts and with such deductibles and covering such risks as are generally deemed adequate and customary for their businesses. All policies of insurance insuring the Company or any of its Subsidiaries or their
respective businesses, assets, employees, officers and directors are in full force and effect; and the Company and its Subsidiaries are in compliance with the terms of such policies and instruments in all material respects; and there are no material
claims by the Company or any of its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability; and neither the Company nor any such Subsidiary has been refused any insurance coverage sought or applied
for. The Company has no reason to believe that it or any of its Subsidiaries will not be able to (A) renew its existing insurance coverage as and when such policies expire or (B) obtain comparable coverage from similar institutions as may
be necessary or appropriate to conduct its business as now conducted at a cost that would not have a Material Adverse Effect.
(cc)
Absence of Manipulation
. Neither the Company nor any of its Subsidiaries or, to the knowledge of the
Company, any other affiliate of the Company has taken, nor will the Company or any such Subsidiary or, to the knowledge of the Company, any other affiliate take, directly or indirectly, any action which is designed, or would reasonably be expected,
to cause or result in, or which constitutes, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Notes or to result in a violation of Regulation M under the Exchange Act.
(dd)
Related Party Transactions
. Except as described in the Registration Statement, the Disclosure Package and
the Prospectus or the documents incorporated by reference therein, there are no business relationships or related-party transactions involving the Company or any Subsidiary or any other person required by the Securities Act and any regulations to be
described in the Registration Statement, the Disclosure Package or the Prospectus or the documents incorporated by reference therein.
(ee)
Foreign Corrupt Practices Act
. None of the Company, any of its Subsidiaries or, to the knowledge of the
Company, any director, officer, agent, employee, affiliate or other person acting on behalf 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
either (i) the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “
FCPA
”), including, without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA or (ii) the U.K. Bribery Act 2010 (the
-8-
“
Bribery Act
”) and the Company, its Subsidiaries and, to the knowledge of the Company, its other affiliates, have conducted their businesses in compliance with the FCPA
and the Bribery Act and have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith.
(ff)
Money Laundering Laws
. The operations of the Company and its Subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions in which the Company and its
Subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any Governmental Entity (collectively, the “
Money Laundering
Laws
”). No action, suit or proceeding by or before any Governmental Entity involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(gg)
Sanctions
. None of the Company, any of its Subsidiaries or, to the knowledge of the Company, any director,
officer, agent, employee, affiliate or other person acting on behalf of the Company or any of its Subsidiaries, is (i) an individual or entity (“
Person
”) currently the subject or target of any sanctions administered or
enforced by the United States Government, including, without limitation, the U.S. Department of the Treasury’s Office of Foreign Assets Control (“
OFAC
”), the United Nations Security Council, the European Union, Her
Majesty’s Treasury, or other relevant sanctions authority (collectively, “
Sanctions
”) or (ii) located, organized or resident in a country or territory that is the subject of Sanctions. The Company will not, directly
or indirectly, use the proceeds of the sale of the Notes, or lend, contribute or otherwise make available such proceeds to any Subsidiaries, joint venture partners or other Person, to fund any activities of or business with any Person, or in any
country or territory, that, at the time of such funding, is the subject of Sanctions or in any other manner that will result in a violation by any Person (including any Person participating in the transaction, whether as underwriter, advisor,
investor or otherwise) of Sanctions.
(hh)
Environmental Laws
. Except as otherwise disclosed or incorporated
by reference in the Disclosure Package and the Prospectus and, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, (A) neither the Company nor any of its Subsidiaries is in violation
of any federal, state, local or foreign law, regulation, order, permit or other requirement relating to pollution or protection of the environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface
strata) or wildlife, including without limitation, laws and regulations relating to emissions, discharges, releases or threatened releases of chemicals, pollutants, contaminants, hazardous wastes, toxic substances, hazardous substances, petroleum
and petroleum products (collectively, “
Materials of Environmental Concern
”), or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of or exposure of
humans to Materials of Environment Concern (collectively, “
Environmental Laws
”), which violation includes, but is not limited to, noncompliance with any permits or other governmental authorizations required for the operation
of the business of the Company or its Subsidiaries under applicable Environmental Laws, or noncompliance with the terms and conditions thereof, nor has the Company or any of its Subsidiaries received any written communication, whether from a
Governmental Entity, citizens group, employee or otherwise, that alleges that the Company or any of its Subsidiaries is in violation of any Environmental Law; (B) there is no claim, action or cause of action filed with a Governmental Entity, no
investigation with respect to which the Company has received written notice, and no written notice by any person or entity alleging potential liability for investigatory costs, cleanup costs, governmental responses costs, natural resources damages,
property damages, personal injuries, attorneys’ fees or penalties arising out of, based on or resulting from the presence, or release into the environment, of any Material of Environmental Concern at any location owned, leased or operated by
the Company or any of its Subsidiaries, now or in the past (collectively, “
Environmental Claims
”), pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries or, to the
Company’s knowledge, any person or entity whose liability for any Environmental Claim the Company or any of its Subsidiaries has retained or assumed either contractually or by operation of law; (C) to the Company’s knowledge, there is
no release, emission, discharge, presence or disposal of any Material of Environmental Concern that reasonably could result in a violation of any Environmental Law, require expenditures to be incurred pursuant to Environmental Law, or form the basis
of a potential Environmental Claim against the Company or any of its Subsidiaries or against any person or entity whose liability for any Environmental Claim the Company or any of its Subsidiaries has retained or assumed either contractually or by
operation of law; and (D) neither the Company nor any of its Subsidiaries is subject to any pending or, to the Company’s knowledge, threatened proceeding under Environmental Law to which a Governmental Entity is a party and which is
reasonably likely to result in monetary sanctions.
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(ii)
ERISA Compliance
. The Company and its Subsidiaries and any
“employee benefit plan” (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended, and the regulations and published interpretations thereunder (collectively, “
ERISA
”))
subject to Title IV of ERISA that is established or maintained by the Company, its Subsidiaries or their ERISA Affiliates (as defined below) for the benefit of their employees are in compliance in all material respects with ERISA. “
ERISA
Affiliate
” means, with respect to the Company or a Subsidiary, any member of any group of organizations described in Sections 414(b), (c), (m) or (o) of the Internal Revenue Code of 1986, as amended (the “
Internal
Revenue Code
”), of which the Company or such Subsidiary is a member. No “reportable event” (as defined under ERISA) has occurred or is reasonably expected to occur with respect to any “employee benefit plan” subject
to Title IV of ERISA that is established or maintained by the Company, its Subsidiaries or any of their ERISA Affiliates for the benefit of their employees. No “employee benefit plan” subject to Title IV of ERISA that is established or
maintained by the Company, its Subsidiaries or any of their ERISA Affiliates, if such “employee benefit plan” were terminated, would have any “amount of unfunded benefit liabilities” (as defined under ERISA). Neither the Company,
its Subsidiaries nor any of their ERISA Affiliates has incurred or reasonably expects to incur any liability under (i) Title IV of ERISA with respect to termination of, or withdrawal from, any “employee benefit plan,” (ii) Sections
412, 4971 or 4975 of the Internal Revenue Code, or (iii) Section 4980B of the Internal Revenue Code with respect to the excise tax imposed thereunder. Each “employee benefit plan” established or maintained by the Company or its
Subsidiaries for the benefit of their employees that is intended to be qualified under Section 401(a) of the Internal Revenue Code has received a favorable determination letter from the Internal Revenue Service and nothing has occurred, whether by
action or failure to act, which is reasonably likely to cause disqualification of any such employee benefit plan under Section 401(a) of the Internal Revenue Code.
(jj)
Compliance with Sarbanes-Oxley Act
. The Company and its Subsidiaries are in material compliance, and will
comply in all material respects, with all applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(kk)
Accounting Controls
. The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that: (A) transactions are executed in accordance with management’s general or specific authorization; (B) transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets; (C) access to assets is permitted only in accordance with 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 maintains a system of internal control over financial reporting (as defined under Rule
13a-15
and Rule
15d-15
of the Exchange Act) and, except as described in the Registration Statement, the Disclosure Package and the Prospectus or the documents incorporated by
reference therein, since the end of the Company’s most recent audited fiscal year, there has been (1) no material weakness or significant deficiency in the Company’s internal control over financial reporting (whether or not
remediated) and (2) 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.
(ll)
Disclosure Controls and Procedures
. The Company maintains disclosure controls and procedures (as such term
is defined in Rule
13a-15(e)
and Rule
15d-15
under the Exchange Act) that comply with the requirements of the Exchange Act; and such disclosure controls and procedures
have been designed to ensure that material information relating to the Company and its Subsidiaries is made known to the Company’s management, including its principal executive officer and principal financial officer and by others within those
entities, to allow timely decisions regarding disclosure. The Company has conducted evaluations of the effectiveness of its disclosure controls and procedures as required by Rule
13a-15
and Rule
15d-15
of the Exchange Act and such disclosure controls and procedures are effective.
(mm)
Deposit Insurance
. The deposit accounts of the bank Subsidiaries of the Company are insured by the Federal
Deposit Insurance Corporation (“
FDIC
”) to the legal maximum; such Subsidiaries have paid all premiums and assessments required by the FDIC and the regulations thereunder; and no proceeding for the termination or revocation of
such insurance is pending or, to the knowledge of the Company, threatened.
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(nn)
Merger with Stonegate Bank.
The Company has entered into the
Agreement and Plan of Merger by and among the Company, the Bank and Stonegate Bank, a Florida-chartered commercial bank (“
Stonegate
”), dated as of March 27, 2017 (the “
Merger Agreement
”), pursuant
to which Stonegate will merge into the Bank. In connection with the transactions contemplated by the Merger Agreement, the Company conducted a “due diligence” review of the business, financial condition, results of operations and business
prospects of Stonegate. The Merger Agreement has been duly authorized, executed and delivered by the Company and the Bank and, assuming the Merger Agreement is the valid and binding obligation of Stonegate, constitutes a valid and binding agreement
of each of the Company and the Bank and is enforceable against each of the Company and the Bank in accordance with its terms subject to (A) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors’ rights generally from time to time in effect, and (B) general principles of equity, regardless of whether considered in a proceeding in equity or at law, and an implied covenant of good faith and fair dealing,
except as may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights and remedies of creditors or by general equitable principles. The Company is not aware of any breach or
development in connection with the Merger Agreement, except for such breaches or developments that would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the consummation of the transactions
contemplated by the Merger Agreement.
Any certificate signed by an officer of the Company and delivered to the Representative or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to each Underwriter as to the matters set forth therein.
SECTION 2.
Purchase, Sale and Delivery of the Notes
.
(a)
The Notes
. The Company agrees to issue and sell to the several Underwriters, severally and not jointly, all
of the Notes upon the terms herein set forth. On the basis of the representations, warranties and agreements herein contained, and upon the terms but subject to the conditions herein set forth, the Underwriters agree, severally and not jointly, to
purchase from the Company the aggregate principal amount of Notes set forth opposite their names on Schedule I at a purchase price of 99.067% of the aggregate principal amount of the Notes, payable on the Closing Date.
(b)
The Closing Date
. Delivery of certificates for the Notes in global form to be purchased by the Underwriters
and payment therefor shall be made at the offices of Squire Patton Boggs, 221 E. Fourth Street, Suite 2900, Cincinnati, Ohio 45202 (or such other place as may be agreed to by the Company and the Representative) at 9:00 a.m., New York City time, on
April 3, 2017, or such other time and date as the Underwriters and the Company shall mutually agree (the time and date of such closing are called the “
Closing Date
”).
(c)
Public Offering of the Notes
. The Representative hereby advises the Company that the Underwriters intend to
offer for sale to the public, as described in the Disclosure Package and the Prospectus, their respective portions of the Notes as soon after the Execution Time as the Representative, in its sole judgment, has determined is advisable and
practicable.
(d)
Payment for the Notes
. Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
(e)
Delivery of the Notes
. The Company
shall deliver, or cause to be delivered, to the Representative for the accounts of the several Underwriters certificates for the Notes at the Closing Date, against the irrevocable release of a wire transfer of immediately available funds for the
amount of the purchase price therefor. The certificates for the Notes shall be in such denominations and registered in such names and denominations as the Representative shall have requested at least two full business days prior to the Closing Date
and shall be made available for inspection on the business day preceding the Closing Date at a location in New York City, as the Representative may designate. Time shall be of the essence, and delivery at the time and place specified in this
Agreement is a further condition to the obligations of the Underwriters.
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SECTION 3.
Covenants of the Company
.
The Company covenants and agrees with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests
. The Company, subject to Section 3(b), will
comply with the requirements of Rule 430B of the Securities Act, and will promptly notify the Representative of (i) the effectiveness during the Prospectus Delivery Period (as defined below) of any post-effective amendment to the Registration
Statement or the filing of any supplement or amendment to the Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission during the Prospectus Delivery Period, (iii) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the Preliminary Prospectus or the Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment or of any order preventing or suspending the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification of the Notes for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceedings for any of such purposes. The Company will promptly effect the filings necessary pursuant to Rule 424 and will take such steps as it deems reasonably necessary to ascertain promptly whether the
Preliminary Prospectus and the Prospectus transmitted for filing under Rule 424 was received for filing by the Commission and, in the event that it was not, it will promptly file such document. The Company will use its reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the lifting thereof at the earliest possible moment.
(b)
Filing or Use of Amendments or Supplements
. During such period beginning on the date of this Agreement and
ending on the later of the Closing Date and such date as, in the opinion of counsel for the Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales of the Notes by an Underwriter or dealer, including in
circumstances where such requirement may be satisfied pursuant to Rule 172 of the Securities Act (the “
Prospectus Delivery Period
”), the Company will give the Representative notice of its intention to file or prepare any
amendment to the Registration Statement, or any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant to the Securities Act, the Exchange Act or otherwise, will furnish the Representative with copies of any
such documents 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 to which the Representative or counsel for the Underwriters shall reasonably object.
(c)
Delivery of Registration Statements
. The Company has furnished or will deliver to the Representative and
counsel for the Underwriters, without charge, signed copies of the Registration Statement as originally filed and each amendment thereto (including exhibits filed therewith or incorporated by reference therein and documents incorporated or deemed to
be incorporated by reference therein) and signed copies of all consents and certificates of experts, and will also deliver to the Representative, 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 Registration Statement and each amendment thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission via
EDGAR, except to the extent permitted by Regulation
S-T.
(d)
Delivery
of Prospectuses
. The Company will deliver to each Underwriter, without charge, as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the Company hereby consents to the use of such copies for purposes
permitted by the Securities Act. The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The Preliminary Prospectus and
the Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(e)
Continued Compliance with Securities Laws
. The Company will
comply with the Securities Act and the Exchange Act so as to permit the completion of the distribution of the Notes as contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the Prospectus during the Prospectus
Delivery Period. If at any time during the Prospectus Delivery Period, any event shall occur or condition shall exist as a result of which it is necessary, in the opinion of counsel for the Underwriters or for the Company, to amend the Registration
Statement in order that the Registration Statement will not contain an untrue statement of a
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material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or to amend or supplement the Disclosure Package or the
Prospectus in order that the Disclosure Package or the Prospectus, as the case may be, 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 the light of the
circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at any such time to amend the Registration Statement or
amend or supplement the Disclosure Package or the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the Representative of any such event, development or condition and (2) promptly prepare and file
with the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Disclosure Package or the Prospectus comply with such law, and the
Company will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.
(f)
Blue Sky Qualifications
. The Company shall cooperate with the Underwriters and counsel for the
Representative to qualify or register the Notes for sale under (or obtain exemptions from the application of) the state securities or blue sky laws of those jurisdictions designated by the Representative, shall comply with such laws and shall
continue such qualifications, registrations and exemptions in effect so long as required for the distribution of the Notes. The Company shall not be required to qualify to transact business or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified or where it would be subject to taxation as a foreign business. The Company will advise the Representative promptly of the suspension of the qualification or
registration of (or any such exemption relating to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts to obtain the withdrawal thereof at the earliest possible moment.
(g)
Use of Proceeds
. The Company shall apply the net proceeds from the sale of the Notes sold by it in the
manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and the Prospectus.
(h)
Depositary
. The Company will cooperate with the Underwriters and use its reasonable efforts to permit the
Notes to be eligible for clearance and settlement through the facilities of the Depositary.
(i)
Periodic
Reporting Obligations
. During the Prospectus Delivery Period, the Company shall file, on a timely basis, with the Commission and the The Nasdaq Stock Market LLC (“
NASDAQ
”), all reports and documents required to be filed
under the Exchange Act.
(j)
Agreement Not to Offer or Sell Additional Securities
. During the period
commencing on the date hereof and ending on the Closing Date, the Company will not, without the prior written consent of the Representative (which consent may be withheld at the sole discretion of the Representative), directly or indirectly, sell,
offer, contract or grant any option to sell, pledge, transfer or establish an open “put equivalent position” within the meaning of Rule
16a-1(h)
under the Exchange Act, or otherwise dispose of or
transfer, or announce the offering of, or file any registration statement under the Securities Act in respect of, any debt securities of the Company similar to the Notes or securities exchangeable for or convertible into debt securities similar to
the Notes (other than as contemplated by this Agreement with respect to the Notes).
(k)
Final Term Sheet
.
The Company will prepare a final term sheet containing only a description of the Notes, in a form approved by the Underwriters and attached as Exhibit A hereto, and will file such term sheet pursuant to Rule 433(d) under the Securities Act within
the time required by such rule (such term sheet, the “
Final Term Sheet
”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes of this Agreement.
(l)
Permitted Free Writing Prospectuses
. The Company represents that it has not made, and agrees that, unless it
obtains the prior written consent of the Representative, it will not make, any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that would otherwise constitute a “free writing prospectus” (as defined
in Rule 405 of the Securities Act) required to be filed by the Company with the Commission or retained by the Company under Rule 433 of the Securities Act; provided that the prior written consent of the
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Representative shall be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in Annex I to this Agreement. Any such free writing prospectus consented to or deemed
to be consented to by the Representative is hereinafter referred to as a “
Permitted Free Writing Prospectus
.” The Company agrees that (i) it has treated and will treat, as the case may be, each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of the Securities Act applicable to any Permitted Free Writing Prospectus, including in
respect of timely filing with the Commission, legending and record keeping. The Company consents to the use by any Underwriter of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule 433,
and (b) contains only (i) information describing the preliminary terms of the Notes or their offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that describes the final terms of the
Notes or their offering and that is included in the Final Term Sheet of the Company contemplated in Section 3(k).
(m)
Eligibility of Automatic Shelf Registration Statement Form
. If at any time during the Prospectus Delivery
Period, the Company receives from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible to use the automatic shelf registration statement form, the Company will (i) promptly notify the Representative,
(ii) promptly file a new registration statement or post-effective amendment on the proper form relating to the Notes, in a form satisfactory to the Representative, (iii) use its best efforts to cause such registration statement or
post-effective amendment to be declared effective as soon as practicable and (iv) promptly notify the Representative of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale
of the Notes to continue as contemplated in the registration statement that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise become ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(n)
Filing Fees
. The Company agrees
to pay the required Commission filing fees relating to the Notes within the time required by and in accordance with Rule 456(b)(1) and 457(r) of the Securities Act.
(o)
Compliance with Sarbanes-Oxley Act
. The Company will comply in all material respects with all applicable
securities and other laws, rules and regulations, including, without limitation, the Sarbanes-Oxley Act.
(p)
No
Manipulation of Price
. The Company will not take, directly or indirectly, any action designed to cause or result in, or that has constituted or might reasonably be expected to constitute, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any securities of the Company to facilitate the sale or resale of the Notes.
(q)
Restriction on Sale of Securities
. The Company will not, without the prior written consent of the
Representative, offer, sell, contract to sell, or otherwise dispose of, directly or indirectly, including the filing (or participation in the filing) of a registration statement with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Exchange Act, any debt securities issued or guaranteed by the Company (other than the Notes) or publicly announce an intention to
effect any such transaction, for a period of 45 days after the date of this Agreement.
(r)
Acquisition
Agreement
. At the Closing Time, the Merger Agreement shall not have been terminated by the Company or the Bank and neither the Company nor the Bank shall have received notice of termination by Stonegate.
The Representative, on behalf of the several Underwriters, may, in its sole discretion, waive in writing the performance by the Company of any
one or more of the foregoing covenants or extend the time for their performance.
SECTION 4.
Payment of
Expenses
. The Company agrees to pay all costs, fees and expenses incurred in connection with the performance of its obligations hereunder and in connection with the transactions contemplated hereby, including without
limitation (i) all expenses incident to the issuance and delivery of the Notes (including all printing and engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the issuance and sale of the Notes,
(iii) all fees and expenses of the Company’s counsel, independent public or
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certified public accountants and other advisors to the Company, (iv) all costs and expenses incurred in connection with the preparation, printing, filing, shipping and distribution of the
Registration Statement (including financial statements, exhibits, schedules, consents and certificates of experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and all amendments and supplements thereto, and
this Agreement, the Indenture and the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes for offer and sale under the state securities or blue sky laws, and, if requested by the Representative, preparing a “Blue Sky Survey” or memorandum, and any supplements
thereto, advising the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection with, the review, if any, by FINRA
of the terms of the sale of the Notes, (vii) the fees and expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee in connection with the Indenture and the Notes, (viii) any fees payable in
connection with the rating of the Notes with the ratings agencies, (ix) all fees and expenses (including reasonable fees and expenses of counsel) of the Company in connection with approval of the Notes by the Depositary for
“book-entry” transfer, (x) all other fees, costs and expenses referred to in Item 14 of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred in connection with the performance of its
obligations hereunder for which provision is not otherwise made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the Underwriters shall pay their own expenses, including the fees and disbursements of their
counsel.
SECTION 5.
Conditions of the Obligations of the Underwriters
. The obligations of the several
Underwriters to purchase and pay for the Notes as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company set forth in Section 1 hereof as of the date hereof, as of
the Initial Sale Time, and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
(a)
Effectiveness of Registration Statement
. The Registration Statement shall have become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto shall have been issued under the Securities Act and no proceedings for that purpose shall have been instituted or be
pending or threatened by the Commission, any request on the part of the Commission for additional information shall have been complied with to the reasonable satisfaction of counsel to the Underwriters, and the Company shall not have received from
the Commission any notice pursuant to Rule 401(g)(2) of the Securities Act objecting to use of the automatic shelf registration statement form. The Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance
with Rule 424(b) (or any required post-effective amendment providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430A).
(b)
Accountants’ Comfort Letter
. On the date hereof, the Representative shall have received from BKD, LLP,
independent registered public accountants for the Company, a letter regarding the Company dated the date hereof addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative with respect to the audited and
unaudited financial statements and certain financial information contained or incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus related to the Company.
(c)
Bring-Down Comfort Letter
. On the Closing Date, the Representative shall have received from BKD, LLP,
independent registered public accountants for the Company, a letter dated such date, in form and substance reasonably satisfactory to the Representative, to the effect that they reaffirm the statements made in the letter furnished by them pursuant
to subsection (b) of this Section 5, except that the specified date referred to therein for the carrying out of procedures shall be no more than three business days prior to the Closing Date.
(d)
No Material Adverse Change or Ratings Agency Change
. For the period from and after the date of this
Agreement and prior to the Closing Date:
(i) in the judgment of the Representative there shall not
have occurred any Material Adverse Change;
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(ii) there shall not have been any change or decrease
specified in the letter or letters referred to in paragraph (c) of this Section 5 which is, in the sole judgment of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery
of the Notes as contemplated by the Prospectus; and
(iii) there shall not have occurred any
downgrading in or withdrawal of, nor shall any notice have been given of any intended or potential downgrading or withdrawal or of any review for a possible change that does not indicate the direction of the possible change, the rating accorded any
securities of the Company or any of its Subsidiaries by any “nationally recognized statistical rating organization” as such term is defined in Section 3(a)(62) of the Exchange Act.
(e)
Opinion of Counsel for the Company
. On the Closing Date, the Representative shall have received the
favorable opinion of Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., counsel for the Company, dated as of such Closing Date, in form and substance reasonably satisfactory to the Representative, together with signed or reproduced
copies of such letter for each of the other Underwriters, substantially to the effect set forth in Exhibit B.
(f)
Opinion of Counsel for the Underwriters
. On the Closing Date, the Representative shall have received the
favorable opinion of Squire Patton Boggs (US) LLP, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as may be reasonably requested by the Underwriters.
(g)
Officers’ Certificate
. On the Closing Date, the Underwriters shall have received a written certificate
executed by the Chief Executive Officer or an Chief Operating Officer of the Company and of the Chief Financial Officer or Chief Accounting Officer of the Company, dated the Closing Date, to the effect that (i) there has been no Material
Adverse Change, (ii) the representations and warranties of the Company in this Agreement are true and correct with the same force and effect as though expressly made at and as of the Closing Date, (iii) the Company has complied with all
agreements and satisfied all conditions on its part to be performed or satisfied on or prior to the Closing Date, and (iv) the conditions specified in Section 5(a) hereof have been satisfied.
(h)
CFO Certificates
. At the time of the execution of this Agreement and on the Closing Date, the Representative
shall have received (i) a certificate of the Chief Financial Officer of the Company, dated the date of this Agreement and the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, certifying certain
financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package, the Prospectus and the Investor Presentation, and (ii) a certificate of the Chief Financial Officer of Stonegate,
dated the date of this Agreement and the Closing Date, in form and substance reasonably satisfactory to counsel for the Underwriters, certifying certain financial information of Stonegate included or incorporated by reference in the Registration
Statement, the Disclosure Package, the Prospectus and the Investor Presentation
.
(i)
Ratings Letter
.
At the time of execution of this Agreement, the Company shall have delivered to the Representative a letter from Kroll Bond Rating Agency, Inc. assigning a rating to the Notes of
BBB-.
(j)
Additional Documents
. On or before the Closing Date, the Representative and counsel for the Underwriters
shall have received such information, documents and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the Notes as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified
in this Section 5 is not satisfied when and as required to be satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, which termination shall be without liability
on the part of any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination.
SECTION 6.
Reimbursement of Underwriters
’
Expenses
. If this Agreement is terminated by the
Representative pursuant to Section 5 or 11, or if the sale to the Underwriters of the Notes on the Closing Date is not
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consummated because of any refusal, inability or failure on the part of the Company to perform any agreement herein or to comply with any provision hereof, the Company agrees to reimburse the
Representative and the other Underwriters (or such Underwriters as have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket
expenses that shall have been reasonably incurred by the Representative and the Underwriters in connection with the proposed purchase and the offering and
sale of the Notes, including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges. It is understood, however, that except as provided in this Section 6 and in
Sections 4 and 8, the Representative and the Underwriters will pay all of their own costs and expenses, including, but not limited to, the fees of their counsel.
SECTION 7.
Effectiveness of this Agreement
. This Agreement shall not become effective until the execution of
this Agreement by the parties hereto.
SECTION 8.
Indemnification
.
(a)
Indemnification of the Underwriters
. The Company agrees to indemnify and hold harmless each Underwriter, its
directors, officers, employees, affiliates and agents, and each person, if any, who controls any Underwriter within the meaning of the Securities Act and the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which
such Underwriter or such director, officer, employee, affiliate, agent or controlling person may become subject, under the Securities Act, the Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected with the written consent of the Company), insofar as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated below) arises out of or is
based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in the Investor Presentation, any Company Additional Written Communication, any Issuer Free
Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to reimburse each Underwriter and each such director, officer, employee, affiliate, agent and controlling person for any and all expenses (including the reasonable fees and disbursements
of counsel chosen by RBC) as such expenses are reasonably incurred by such Underwriter or such director, officer, employee, affiliate, agent or controlling person in connection with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or based upon any
untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by any Underwriter through the Representative expressly for use in the
Registration Statement, the Investor Presentation, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto). The indemnity agreement set
forth in this Section 8(a) shall be in addition to any liabilities that the Company may otherwise have.
(b)
Indemnification of the Company, Its Directors and Officers
. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, each of its directors, each of its officers who signed the Registration Statement and each person, if any, who controls the Company within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to which the Company or any such director, officer or controlling person may become subject, under the Securities Act, the Exchange Act, or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any litigation, if such settlement is effected with the written consent of such Underwriter), insofar as such loss, claim, damage, liability or expense (or actions in respect
thereof as contemplated below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, or any amendment thereto, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue statement of a material fact contained in any Company Additional Written
Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in order to make the statements
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therein, in the light of the circumstances under which they were made, not misleading, in each case to the extent, but only to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with information furnished to the Company in writing by such Underwriter through the Representative expressly for use therein; and to reimburse the Company, or any such director, officer or controlling person for any
legal and other expense reasonably incurred by the Company, or any such director, officer or controlling person in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.
The Company hereby acknowledges that the only information furnished to the Company by any Underwriter through the Representative expressly for use in the Registration Statement, any Company Additional Written Communication, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto) are the statements set forth in the information concerning selling concessions and discounts contained under the caption “Underwriting —
Commissions and Discounts” and the information concerning stabilizing activities contained in the paragraphs under the caption “Underwriting — Short Positions” in the Preliminary Prospectus and the Prospectus. The indemnity
agreement set forth in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise have.
(c)
Notifications and Other Indemnification Procedures
. Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified party will, if a claim in respect thereof is to be made against an indemnifying party under this Section 8, notify the indemnifying party in writing of the
commencement thereof, but the omission to so notify the indemnifying party will not relieve it from any liability which it may have to any indemnified party for contribution or otherwise under the indemnity agreement contained in this Section 8
except to the extent the indemnifying party has been prejudiced as a proximate result of such failure. In case any such action is brought against any indemnified party and such indemnified party seeks or intends to seek indemnity from an
indemnifying party, the indemnifying party will be entitled to participate in, and, to the extent that it shall elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party, to assume
the defense thereof with counsel reasonably satisfactory to such indemnified party; provided, however, such indemnified party shall have the right to employ its own counsel in any such action and to participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has failed
promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified party; or (iii) the named parties to any such action (including any impleaded parties) include both such indemnified party and the indemnifying party
or any affiliate of the indemnifying party, and such indemnified party shall have reasonably concluded that either (x) there may be one or more legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it being understood, however, that the
indemnifying party shall not, in connection with any one such action or separate but substantially similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses
of more than one separate firm of attorneys (in addition to a single firm of local counsel) for all such indemnified parties, which firm shall be designated in writing by RBC and that all such reasonable fees and expenses shall be reimbursed as they
are incurred). Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this Section 8 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless the indemnified party shall have employed separate
counsel in accordance with the proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel shall be at the expense of the indemnifying party.
(d)
Settlements
. The indemnifying party under this Section 8 shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party against any loss, claim, damage, liability or
expense by reason of such settlement or judgment. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement, compromise or consent to the entry of judgment in any pending or threatened action,
suit or proceeding in respect of which any indemnified party is or could have been a party and indemnity was or could have been sought hereunder by such indemnified party, unless
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such settlement, compromise or consent (i) includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or
proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
SECTION 9.
Contribution
. If the indemnification provided for in Section 8 is for any reason held to be
unavailable to or otherwise insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount paid or
payable by such indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses referred to therein (i) in such proportion as is appropriate to reflect the relative benefits received by the Company, on the
one hand, and the Underwriters, on the other hand, from the offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company, on the one hand, and the Underwriters, on the other hand, in connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the
Notes pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses) received by the Company, and the total
underwriting discounts received by the Underwriters in connection therewith, in each case as set forth on the front cover page of the Prospectus, bear to the aggregate initial public offering price of the Notes as set forth on such cover. 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, on the one hand, or the Underwriters, on the other hand, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set forth in Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to contribute any amount in excess of the total
underwriting discounts and commissions received by such Underwriter in connection with the Notes underwritten by it and distributed to the public. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint, in proportion to
their respective underwriting commitments as set forth opposite their names in Schedule I. For purposes of this Section 9, each director, officer, employee, affiliate and agent of an Underwriter and each person, if any, who controls an
Underwriter within the meaning of the Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter, and each director of the Company, each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company with the meaning of the Securities Act and the Exchange Act, shall have the same rights to contribution as the Company.
SECTION 10.
Default of One or More of the Several Underwriters
. If, on the Closing Date, any one or more of the
several Underwriters shall fail or refuse to purchase Notes that it or they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase does not exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of such Notes set forth opposite
their respective names on Schedule I bears to the aggregate principal amount of such Notes set forth opposite the names of all such
non-defaulting
Underwriters, or in such other proportions as may be specified
by the Representative with the consent of the
non-defaulting
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Underwriters, to purchase such Notes which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any one or more of the
Underwriters shall fail or refuse to purchase such Notes and the aggregate principal amount of such Notes with respect to which such default occurs exceeds 10% of the aggregate principal amount of Notes to be purchased on such date, and arrangements
satisfactory to the Representative and the Company for the purchase of such Notes are not made within 48 hours after such default, this Agreement shall terminate without liability on the part of the
non-defaulting
Underwriters or the Company, except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and shall survive such termination. In any such case, either the
Representative or the Company shall have the right to postpone the Closing Date, but in no event for longer than seven days in order that the required changes, if any, to the Registration Statement, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus or any other documents or arrangements may be effected.
As used in this Agreement, the term
“
Underwriter
” shall be deemed to include any person substituted for a defaulting Underwriter under this Section 10. Any action taken under this Section 10 shall not relieve any defaulting Underwriter from liability
to the Company in respect of any default of such Underwriter under this Agreement.
SECTION 11.
Termination of
This Agreement
. Prior to the Closing Date, this Agreement may be terminated by the Representative by notice given to the Company if at any time (i) trading or quotation in any of the Company’s securities shall have been suspended or
limited by the Commission or the NASDAQ or trading in securities generally on either NASDAQ or the New York Stock Exchange, Inc. (“
NYSE
”) shall have been suspended or limited, or minimum or maximum prices shall have been
generally established on any of such stock exchanges by the Commission or FINRA; (ii) a general banking moratorium shall have been declared by any federal or New York authority; (iii) there shall have occurred any outbreak or escalation of
national or international hostilities or any crisis or calamity involving the United States, or any change in the United States or international financial markets, or any substantial change or development involving a prospective substantial change
in United States or international political, financial or economic conditions, as in the judgment of the Representative is material and adverse and makes it impracticable or inadvisable to market the Notes in the manner and on the terms described in
the Disclosure Package or the Prospectus or to enforce contracts for the sale of securities; (iv) in the judgment of the Representative there shall have occurred any Material Adverse Change; or (v) there shall have occurred a material
disruption in commercial banking or securities settlement or clearance services. Any termination pursuant to this Section 11 shall be without liability of any party to any other party except as provided in Sections 4 and 6 hereof, and provided
further that Sections 4, 6, 8, 9 and 17 shall survive such termination and remain in full force and effect.
SECTION
12.
No Fiduciary Duty
. The Company acknowledges and agrees that: (i) the purchase and sale of the Notes pursuant to this Agreement, including the determination of the public offering price of the Notes and any
related discounts and commissions, is an arm’s length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other hand, and the Company is capable of evaluating and understanding and understands and
accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated hereby and the process leading to such transaction each Underwriter is and has been acting solely
as a principal and is not the financial advisor, agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) and no
Underwriter has any obligation to the Company with respect to the offering contemplated hereby except the obligations expressly set forth in this Agreement; (iv) the several Underwriters and their respective affiliates may be engaged in a broad
range of transactions that involve interests that differ from those of the Company and that the several Underwriters have no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v) the
Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to the offering contemplated hereby and the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the several
Underwriters with respect to the subject matter hereof. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the several Underwriters with respect to any breach or alleged
breach of agency or fiduciary duty.
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SECTION 13.
Representations and Indemnities to Survive Delivery
.
The respective indemnities, agreements, representations, warranties and other statements of the Company and of the several Underwriters set forth in or made pursuant to this Agreement (i) will remain operative and in full force and effect,
regardless of any (A) investigation, or statement as to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any Underwriter, or any person controlling the Underwriter, the Company, the officers or
employees of the Company, or any person controlling the Company, as the case may be or (B) acceptance of the Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes sold hereunder and any
termination of this Agreement.
SECTION 14.
Notices
. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representative:
RBC Capital Markets, LLC
Three
World Financial Center
200 Vesey Street, 8th Floor
New York, New York 10281
Facsimile: (212)
658-6137
Attention: DCM Transaction Management
with a copy to:
Squire Patton
Boggs (US) LLP
221 E. Fourth Street
Cincinnati, OH 45202
Facsimile:
(513)
361-1201
Attention: James J. Barresi, Esq.
If to the Company:
Home
BancShares, Inc.
719 Harkrider Street
Suite 100
Conway, Arkansas 72032
Facsimile: (501)
328-4890
Attention: Chief Financial Officer
with a copy to:
Mitchell,
Williams, Selig, Gates & Woodyard, P.L.L.C.
425 West Capitol Avenue, Suite 1800
Little Rock, Arkansas 72201
Facsimile:
(501) 918-7866
Attention: C. Douglas Buford, Jr., Esq.
Any party hereto may change the address for receipt of communications by giving written notice to the others.
SECTION 15.
Successors
. This Agreement will inure to the benefit of and be binding upon the parties hereto,
including any substitute Underwriters pursuant to Section 10 hereof, and to the benefit of the directors, officers, employees, affiliates, agents and controlling persons referred to in Sections 8 and 9, and in each case their respective
successors, and no other person will have any right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes as such from any of the Underwriters merely by reason of such purchase.
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SECTION 16.
Partial Unenforceability
. The invalidity or
unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.
SECTION 17.
Governing Law Provisions
. THIS AGREEMENT AND ANY CLAIM, CONTROVERSY OR DISPUTE ARISING UNDER OR
RELATED TO THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF, THE STATE OF NEW YORK WITHOUT REGARD TO ITS CHOICE OF LAW PROVISIONS.
SECTION 18.
Consent to Jurisdiction
. Each of the parties hereto agrees that any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated hereby (“
Related Proceedings
”) shall be instituted in (i) the federal courts of the United States of America located in the City and County of
New York, Borough of Manhattan or (ii) the courts of the State of New York located in the City and County of New York, Borough of Manhattan (collectively, the “
Specified Courts
”), and irrevocably submits to the exclusive
jurisdiction (except for proceedings instituted in regard to the enforcement of a judgment of any Specified Court (a “
Related Judgment
”), as to which such jurisdiction is
non-exclusive)
of the Specified Courts in any such suit, action or proceeding. Service of any process, summons, notice or document by mail to such party’s address set forth above shall be effective service of process for any suit, action or proceeding brought
in any Specified Court. Each of the parties hereto irrevocably and unconditionally waives any objection to the laying of venue of any suit, action or proceeding in the Specified Courts and irrevocably and unconditionally waives and agrees not to
plead or claim in any Specified Court that any such suit, action or proceeding brought in any Specified Court has been brought in an inconvenient forum.
SECTION 19.
Trial by Jury
. THE COMPANY (ON ITS BEHALF AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF
OF ITS SHAREHOLDERS AND AFFILIATES) AND EACH OF THE UNDERWRITERS HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 20.
Research Analyst Independence
. The Company acknowledges
that the Underwriters’ research analysts and research departments are required to be independent from their respective investment banking divisions and are subject to certain regulations and internal policies, and that such Underwriters’
research analysts may hold views and make statements or investment recommendations and/or publish research reports with respect to the Company, its Subsidiaries and/or the offering of the Notes that differ from the views of their respective
investment banking divisions. The Company hereby waives and releases, to the fullest extent permitted by law, any claims that the Company may have against the Underwriters with respect to any conflict of interest that may arise from the fact that
the views expressed by their independent research analysts and research departments may be different from or inconsistent with the views or advice communicated to the Company by such Underwriters’ investment banking divisions. The Company
acknowledges that each of the Underwriters is a full service securities firm and as such from time to time, subject to applicable securities laws, may effect transactions for its own account or the account of its customers and hold long or short
positions in debt or equity securities of the companies that may be the subject of the transactions contemplated by this Agreement.
SECTION 21.
General Provisions
. This Agreement may be executed by facsimile or other electronic transmission and
in two or more counterparts, each one of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument. This Agreement may not be amended or modified unless in writing by all of the parties
hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the
construction or interpretation of this Agreement.
-22-
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including, without limitation, the indemnification provisions of Section 8 and the contribution provisions of Section 9, and is fully informed regarding
said provisions. Each of the parties hereto further acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act and the Exchange Act.
-23-
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all counterparts hereof, shall become a binding agreement in accordance with its terms.
|
|
|
|
|
|
|
Very truly yours,
|
|
|
|
HOME BANCSHARES, INC.
|
|
|
|
|
By:
|
|
/s/ Brian S. Davis
|
|
|
|
Name:
|
|
Brian S. Davis
|
|
|
|
Title:
|
|
Chief Financial Officer
|
Signature Page to
Underwriting Agreement
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Underwriters as of
the date first above written.
|
|
|
|
|
|
|
RBC CAPITAL MARKETS, LLC
|
|
Acting on behalf of itself and as Representative of the
other Underwriters named in Schedule I hereto
|
|
|
|
|
By:
|
|
/s/ Scott G. Primrose
|
|
|
|
Name:
|
|
Scott G. Primrose
|
|
|
|
Title:
|
|
Authorized Signatory
|
Signature Page to
Underwriting Agreement
SCHEDULE I
|
|
|
|
|
|
|
Underwriters
|
|
Aggregate Principal
Amount of Notes
to be Purchased
|
|
|
RBC Capital Markets, LLC
|
|
$
|
105,000,000
|
|
|
Sandler O’Neill & Partners, L.P.
|
|
|
82,500,000
|
|
|
Stephens Inc.
|
|
|
82,500,000
|
|
|
Crews & Associates, Inc.
|
|
|
22,500,000
|
|
|
U.S. Bancorp Investments, Inc.
|
|
|
7,500,000
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
300,000,000
|
|
|
|
|
|
|
|
SCHEDULE I
ANNEX I
Issuer Free Writing Prospectuses
Final
Term Sheet dated March 30, 2017
ANNEX I
ANNEX II
Company Additional Written Communication
None.
ANNEX II
ANNEX III
Subsidiaries
Centennial Bank
Liberty (AR) Statutory Trust I
Liberty (AR) Statutory Trust II
Centennial (AR) Statutory Trust I
Russellville Statutory
Trust I
RCA Air, LLC (50% owned by Home BancShares, Inc.)
Freedom Insurance Group, Inc.
Centennial Insurance Agency,
Inc.
Cook Insurance Agency, Inc.
ANNEX III
Exhibit A
Term Sheet
March 30,
2017
FINAL PRICING TERM SHEET
HOME BANCSHARES, INC.
$300,000,000
5.625%
Fixed-to-Floating
Rate Subordinated Notes Due 2027
The following information
supplements the Preliminary Prospectus Supplement, dated March 28, 2017 (the “Preliminary Prospectus”). Terms are used in this term sheet with the meanings assigned to them in the Preliminary Prospectus.
|
|
|
|
|
Issuer:
|
|
Home BancShares, Inc. (the “Company”)
|
|
|
|
|
Security Offered:
|
|
$300 million aggregate principal amount of 5.625%
fixed-to-floating
Rate subordinated notes due April 15, 2027 (“the
Notes”)
|
|
|
|
|
Offering Structure:
|
|
10
Non-Call
5
(Fixed-to-Float)
|
|
|
|
|
Security Rating*:
|
|
BBB-
(Kroll Bond Rating Agency)
|
|
|
|
|
Form of Offering:
|
|
SEC Registered
|
|
|
|
|
Trade Date:
|
|
March 30, 2017
|
|
|
|
|
Settlement Date:
|
|
April 3, 2017 (T+2)
|
|
|
|
|
Final Maturity Date (if not previously redeemed):
|
|
April 15, 2027
|
|
|
|
|
Benchmark Treasury:
|
|
2.250% due February 15, 2027
|
|
|
|
|
Benchmark Yield:
|
|
2.418%
|
|
|
|
|
Spread to Benchmark Treasury:
|
|
T+320.7
basis points
|
|
|
|
|
Price to Public (Issue Price):
|
|
99.997%
|
|
|
|
|
Interest Rate:
|
|
5.625% per annum during the fixed rate period, 3 month LIBOR plus 357.5 basis points
during floating rate period commencing April 15, 2022
|
|
|
|
|
Interest Payment Dates:
|
|
From and including the issue date, to but excluding April 15, 2022, the notes will pay interest on April 15 and October 15,
commencing on October 15
,
2017
From and including April 15, 2022
to April 15, 2027 but excluding the maturity date or the date of earlier redemption, the notes will pay interest on January 15, April 15, July 15, and October 15 of each year
|
|
|
|
|
Optional Redemption:
|
|
The Company may, at its option, on the interest payment date of April 15,
2022 or any interst payment date thereafter, redeem the subordinated notes in whole or in part at 100% of the principal amount of the subordinated
notes, plus accrued and unpaid interest thereon to but excluding the date of redemption
|
EXHIBIT A
|
|
|
|
|
Special Events Redemption:
|
|
The Notes may not be redeemed prior to April 15
,
2022, except that the Company may redeem the Notes at any time, at its option, in whole, but not in part prior to the stated maturity date in the event of i.) a Tax Event,
ii.) a Tier 2 Capital Event, or iii.) a 1940 Act Event as described in the “Description of the Notes – Optional Redemption and Redemption upon Special Events” in the preliminary prospectus supplement dated March 28,
2017
|
|
|
|
|
Denominations:
|
|
$1,000 and integral multiples of $1,000 in excess thereof
|
|
|
|
|
Use of Proceeds:
|
|
General Corporate Purposes
|
|
|
|
|
Joint Bookrunners:
|
|
RBC Capital Markets, LLC
Sandler O’Neill +
Partners, L.P.
Stephens Inc.
|
|
|
|
|
Co Managers:
|
|
Crews & Associates, Inc.
U.S. Bancorp
Investments, Inc.
|
|
|
|
|
Day Count Convention:
|
|
30/360 to but excluding April 15, 2022, and thereafter, a
360-day
year and the number of days actually elapsed
|
|
|
|
|
CUSIP / ISIN:
|
|
436893AA9 / US436893AA95
|
The Issuer has filed a registration statement (including a prospectus and prospectus supplement) with the Securities and
Exchange Commission for the offering to which this communication relates. Before you invest, you should read the prospectus in that registration statement and other documents the Issuer has filed with the Securities and Exchange Commission for more
complete information about the Issuer and this offering. You may obtain these documents for free by visiting EDGAR on the web site of the Securities and Exchange Commission at www.sec.gov. Alternatively, the Issuer or the Joint Book-Running Managers
will arrange to send you the prospectus and prospectus supplement if you request them by calling RBC Capital Markets, LLC toll free at
1-866-375-6829,
Sandler O’Neill + Partners, L.P. toll free at
1-866-805-4128,
or Stephens Inc. toll-free at
1-800-643-9691.
|
*
|
A securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time.
|
EXHIBIT A
Exhibit B
FORM OF OPINION OF COMPANY’S COUNSEL TO BE DELIVERED PURSUANT TO 5(e)
(i) The Company is duly registered as a bank holding company under the Bank Holding Company Act of 1956, as amended.
(ii) The Company 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.
(iii) The Notes have been duly authorized for issuance under the Indenture and sale by the Company to the Underwriters pursuant to the
Underwriting Agreement and, when issued and delivered pursuant to the Underwriting Agreement and the Indenture against payment of the consideration set forth therein, will be validly issued and will represent valid and binding obligations of the
Company and be entitled to the rights under, and the benefits of, the Indenture.
(iv) The Indenture constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting
creditors’ rights generally and by general equitable principles, regardless of whether considered in a proceeding in equity or at law. The Indenture conforms in all material respects to all statements relating thereto contained in the
Registration Statement, the Disclosure Package and the Prospectus.
(v) Each Subsidiary has been duly organized and is validly
existing as a corporation, limited liability company, trust company or bank in good standing under the laws of the jurisdiction of its 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 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.
(vi) The Registration Statement and any post-effective amendment thereto have become effective upon filing under the Securities Act;
any required filing of the Preliminary Prospectus and the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b) (without reference to Rule 424(b)(8)); any required filing of each Issuer
Free Writing Prospectus pursuant to Rule 433 has been made in the manner and within the time period required by Rule 433(d); and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement or any post-effective
amendment thereto has been issued under the Securities Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission. The Indenture has been qualified under the Trust Indenture Act.
(vii) The Registration Statement, the Preliminary Prospectus, the Prospectus, and each amendment or supplement to the Registration
Statement and the Prospectus, excluding the documents incorporated or deemed incorporated by reference therein, as of their respective effective or issue dates (other than the financial statements and supporting schedules and other financial data
included therein or omitted therefrom, as to which we express no opinion) complied as to form in all material respects with the requirements of the Securities Act and any regulations promulgated thereunder.
(viii) The documents incorporated by reference in the Disclosure Package and the Prospectus (other than the financial statements and
supporting schedules and other financial data included therein or omitted therefrom, as to which we express no opinion), when they were filed with the Commission complied as to form in all material respects with the requirements of the Exchange Act
and any regulations promulgated thereunder.
(ix) To our knowledge, there are no statutes or regulations that are required to be
described in the Registration Statement, the Disclosure Package or the Prospectus that are not described as required.
(x) To our
knowledge, there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any Subsidiary is a party, or to which the property of the Company or any Subsidiary is subject, before or brought by any
court or governmental agency or body, domestic or foreign, (A) which could reasonably be expected to result in a Material Adverse Effect, (B) which if decided adversely to the Company or any Subsidiary, would reasonably be expected to
materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in the Operative Documents or the performance by the Company of its obligations thereunder, or (C) which are required to be
disclosed in the Registration Statement, other than those disclosed in the Registration Statement or in the Disclosure Package.
(xi) The information (i) in the Disclosure Package and the Prospectus under “Description of the Notes,” “U.S.
Federal Income Tax Considerations” and “Certain ERISA Considerations”; and (ii) in the Registration Statement under Item 15, to the extent that it constitutes matters of law, summaries of legal matters, the Charter and the Bylaws
of the Company or legal proceedings, or legal conclusions, has been reviewed by us and is correct in all material respects.
(xii) The authorized, issued and outstanding capital stock of the Company is as set forth in the Registration Statement, the Disclosure
Package and the Prospectus, in the column entitled “Actual” under the caption “Capitalization” (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee
benefit plans referred to in the Registration Statement, the Disclosure Package and the Prospectus or pursuant to the exercise of convertible securities or options referred to in the Registration Statement, the Disclosure Package and the Prospectus)
and conform to the descriptions thereof set forth or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus.
(xiii) To our knowledge, (A) neither the Company nor any Subsidiary is in violation of its charter, bylaws, or similar
organizational documents, and (B) no default by the Company or any Subsidiary exists in the due performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument that is described or referred to in the Registration Statement, the Disclosure Package or the Prospectus or filed or incorporated by reference as an exhibit to the Registration Statement.
(xiv) No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any Governmental
Entity, domestic or foreign (other than (A) under the Securities Act and any regulations promulgated with respect thereto, which have been obtained or made, as applicable, (B) pursuant to a Current Report on Form
8-K
under the Exchange Act, or (C) as may be required under FINRA, the securities or blue sky laws of the various states, as to which we express no opinion) is necessary or required in connection with the due
authorization, execution and delivery of the Underwriting Agreement and the performance by the Company of its obligations thereunder or for the offering, issuance, sale or delivery of the Notes under the Underwriting Agreement and the consummation
of the transactions contemplated in the Underwriting Agreement and the performance of the Company of its obligations thereunder.
(xv) The execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the
Operative Documents and in the Prospectus (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the
Company with its obligations under the Operative Documents do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or constitute a breach of or a default or Debt Repayment Triggering Event under, or,
result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Subsidiary pursuant to any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or any other
agreement or instrument, known to us, to which the Company or any Subsidiary 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 conflicts,
breaches or defaults or liens, charges or encumbrances that would not have a Material Adverse Effect or materially adversely affect the ability of the Company to consummate the transactions contemplated in the Underwriting Agreement), nor will such
action result in any violation of the provisions of the charter, bylaws or other organizational documents of the
Company or any Subsidiary, or any applicable law, statute, rule, regulation, judgment, order, writ or decree, known to us, of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any of their respective properties, assets or operations (except for such violations that would not have a Material Adverse Effect or materially adversely affect the ability of the
Company to consummate the transactions contemplated by the Underwriting Agreement).
(xvi) The Company is not, and after giving
effect to the offer and sale of the Notes and the application of the net proceeds from such sale as described under the caption “Use of Proceeds” in the Prospectus will not be, required to register as, an “investment company” or
an entity “controlled” by an “investment company,” as such terms are defined in the 1940 Act.
(xvii) The
Company has been duly incorporated and, based solely upon a good standing certificate of the Arkansas Secretary of State dated , 2017, is validly existing as a corporation in
good standing under the laws of the State of Arkansas.
(xviii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under the Operative Documents.
(xix) The Notes to be purchased by the Underwriters from the Company have been duly authorized for issuance.
(xx) The Operative Documents have been duly authorized, executed and delivered by the Company.
(xxi) The execution, delivery and performance of the Operative Documents and the consummation of the transactions contemplated in the
Operative Documents and in the Prospectus (including the issuance and sale of the Notes and the use of the proceeds from the sale of the Notes as described in the Prospectus under the caption “Use of Proceeds”) and compliance by the
Company with its obligations under the Operative Documents do not and will not, whether with or without the giving of notice or lapse of time or both, conflict with or result in any violation of the Arkansas Business Corporation Act (the
“ABCA”).
No facts have come to our attention that would lead us to believe that:
1. the Registration Statement as of the “new effective date” with respect to the Underwriters and the Notes
pursuant to, and within the meaning of, Rule 430B(f)(2) of the promulgated under the Securities Act arising from the filing of the Prospectus with the Commission, contained an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not misleading;
2. the Disclosure
Package, at the Initial Sale Time, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;
or
3. the Prospectus, as of [ ], 2017 or at
the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not
misleading;
except that, in each case, we express no belief, and make no statement, with respect to the financial statements and schedules and other
financial data included or incorporated by reference therein or omitted therefrom.
Insofar as the statement set forth in Item 1 in the
immediately preceding paragraph addresses the Registration Statement as of the “new effective date” with respect to the Underwriters and the Notes arising from the filing of the Prospectus with the Commission, we have been informed by the
Underwriters that, with respect to the Notes, at [ ] (New York City time) on [ ], 2017 is immediately prior
to “the earlier of the date such subsequent form of prospectus is first used or the date and time of the first contract of sale of securities in the offering to which such subsequent form of prospectus relates” within the meaning of Rule
430B(f)(1) promulgated under the Securities Act, and we have assumed, with your permission and without independent investigation or verification, the accuracy of such information.
This opinion is rendered solely for the purposes contemplated by the Underwriting Agreement.
Without our prior written consent, this opinion may not be used, quoted, or relied upon by you and the other Underwriters for any other purpose or by any other person, nor may copies be delivered to any other person, without in each instance our
prior written consent, except that you and the other Underwriters may disclose this opinion without our prior written consent on a
non-reliance
basis (i) as required by law or regulation, (ii) to
your and the other Underwriters’ legal advisers, (iii) in connection with any actual or potential judicial or regulatory proceeding and (iv) as may be required in connection with any litigation or proposed litigation in relation to
the Underwriting Agreement or the issuance and sale of the Notes pursuant thereto.
Exhibit 4.1
Execution Version
HOME
BANCSHARES, INC.,
an Arkansas corporation,
as Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
SUBORDINATED
INDENTURE
Dated as of April 3, 2017
Subordinated Debt Securities
Reconciliation and tie to Trust Indenture Act of 1939, as amended.
|
|
|
|
|
|
|
Trust Indenture Act Section
|
|
Indenture Section
|
|
Section 310
|
|
(a)(1)
|
|
607
|
|
|
|
(a)(2)
|
|
607
|
|
|
|
(a)(5)
|
|
607
|
|
|
|
(b)
|
|
604, 607
|
|
Section 311
|
|
(a)
|
|
604, 612
|
|
|
|
(b)
|
|
604, 612
|
|
|
|
(b)(2)
|
|
604, 612
|
|
Section 312
|
|
(a)
|
|
701, 702(1)
|
|
|
|
(b)
|
|
702(1)
|
|
|
|
(c)
|
|
702(2)
|
|
Section 313
|
|
(a)
|
|
703(1), 703(2)
|
|
|
|
(b)
|
|
703(1)
|
|
|
|
(c)
|
|
703(3)
|
|
|
|
(d)
|
|
703(3)
|
|
Section 314
|
|
(a)
|
|
704, 1005
|
|
|
|
(c)(1)
|
|
102
|
|
|
|
(c)(2)
|
|
102
|
|
|
|
(e)
|
|
102
|
|
Section 315
|
|
(a)
|
|
602
|
|
|
|
(b)
|
|
601
|
|
|
|
(c)
|
|
602
|
|
|
|
(d)
|
|
602
|
|
|
|
(e)
|
|
514
|
|
Section 316
|
|
(a)
|
|
104
|
|
|
|
(a)(1)(A)
|
|
511
|
|
|
|
(a)(1)(B)
|
|
512
|
|
|
|
(b)
|
|
508
|
|
|
|
(c)
|
|
104
|
|
Section 317
|
|
(a)(1)
|
|
505
|
|
|
|
(a)(2)
|
|
504
|
|
|
|
(b)
|
|
1003
|
|
Section 318
|
|
(a)
|
|
108
|
Note: This reconciliation and tie shall not, for any purpose, be deemed to be a part of this Subordinated Indenture.
TABLE OF CONTENTS
|
|
|
|
|
|
|
|
|
ARTICLE I.
|
|
|
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
|
|
|
|
|
|
|
Section 101.
|
|
Definitions
|
|
|
1
|
|
|
|
|
|
|
Section 102.
|
|
Compliance Certificates and Opinions
|
|
|
10
|
|
|
|
|
|
|
Section 103.
|
|
Form of Documents Delivered to Trustee
|
|
|
11
|
|
|
|
|
|
|
Section 104.
|
|
Acts of Holders
|
|
|
12
|
|
|
|
|
|
|
Section 105.
|
|
Notices, Etc., to Trustee and Company
|
|
|
13
|
|
|
|
|
|
|
Section 106.
|
|
Notice to Holders; Waiver
|
|
|
13
|
|
|
|
|
|
|
Section 107.
|
|
Language of Notices
|
|
|
14
|
|
|
|
|
|
|
Section 108.
|
|
Conflict With Trust Indenture Act
|
|
|
14
|
|
|
|
|
|
|
Section 109.
|
|
Effect of Headings and Table of Contents
|
|
|
14
|
|
|
|
|
|
|
Section 110.
|
|
Successors and Assigns
|
|
|
14
|
|
|
|
|
|
|
Section 111.
|
|
Separability Clause
|
|
|
15
|
|
|
|
|
|
|
Section 112.
|
|
Benefits of Indenture
|
|
|
15
|
|
|
|
|
|
|
Section 113.
|
|
Governing Law
|
|
|
15
|
|
|
|
|
|
|
Section 114.
|
|
Legal Holidays
|
|
|
15
|
|
|
|
|
|
|
Section 115.
|
|
Jury Trial Waiver
|
|
|
15
|
|
|
|
|
|
|
Section 116.
|
|
U.S.A. PATRIOT Act
|
|
|
15
|
|
|
|
|
ARTICLE II.
|
|
|
SECURITIES FORMS
|
|
|
|
|
|
|
Section 201.
|
|
Forms Generally
|
|
|
16
|
|
|
|
|
|
|
Section 202.
|
|
Form of Trustee’s Certificate of Authentication
|
|
|
16
|
|
|
|
|
|
|
Section 203.
|
|
Securities in Global Form
|
|
|
16
|
|
|
|
|
ARTICLE III.
|
|
|
THE SECURITIES
|
|
|
|
|
|
|
Section 301.
|
|
Amount Unlimited; Issuable in Series
|
|
|
18
|
|
|
|
|
|
|
Section 302.
|
|
Denominations
|
|
|
21
|
|
|
|
|
|
|
Section 303.
|
|
Execution, Authentication, Delivery and Dating
|
|
|
21
|
|
|
|
|
|
|
Section 304.
|
|
Temporary Securities
|
|
|
22
|
|
|
|
|
|
|
Section 305.
|
|
Registration, Transfer and Exchange
|
|
|
23
|
|
|
|
|
|
|
Section 306.
|
|
Mutilated, Destroyed, Lost and Stolen Securities
|
|
|
25
|
|
|
|
|
|
|
Section 307.
|
|
Payment of Interest; Interest Rights Preserved
|
|
|
26
|
|
|
|
|
|
|
Section 308.
|
|
Persons Deemed Owners
|
|
|
28
|
|
i
|
|
|
|
|
|
|
|
|
Section 309.
|
|
Cancellation
|
|
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28
|
|
|
|
|
|
|
Section 310.
|
|
Computation of Interest
|
|
|
28
|
|
|
|
|
|
|
Section 311.
|
|
CUSIP Numbers
|
|
|
29
|
|
|
|
|
ARTICLE IV.
|
|
|
SATISFACTION AND DISCHARGE
|
|
|
|
|
|
|
Section 401.
|
|
Satisfaction and Discharge of Indenture
|
|
|
29
|
|
|
|
|
|
|
Section 402.
|
|
Application of Trust Money
|
|
|
30
|
|
|
|
|
|
|
Section 403.
|
|
Satisfaction, Discharge and Defeasance of Securities of Any Series
|
|
|
31
|
|
|
|
|
ARTICLE V.
|
|
|
REMEDIES
|
|
|
|
|
|
|
Section 501.
|
|
Event of Default
|
|
|
33
|
|
|
|
|
|
|
Section 502.
|
|
Acceleration of Maturity; Rescission and Annulment
|
|
|
34
|
|
|
|
|
|
|
Section 503.
|
|
Collection of Indebtedness and Suits for Enforcement by Trustee
|
|
|
35
|
|
|
|
|
|
|
Section 504.
|
|
Trustee May File Proofs of Claim
|
|
|
36
|
|
|
|
|
|
|
Section 505.
|
|
Trustee May Enforce Claims Without Possession of Securities
|
|
|
37
|
|
|
|
|
|
|
Section 506.
|
|
Application of Money Collected
|
|
|
37
|
|
|
|
|
|
|
Section 507.
|
|
Limitation on Suits
|
|
|
37
|
|
|
|
|
|
|
Section 508.
|
|
Unconditional Right of Holders to Receive Principal, Premium, Interest and Additional
Amounts
|
|
|
38
|
|
|
|
|
|
|
Section 509.
|
|
Rights and Remedies Cumulative
|
|
|
39
|
|
|
|
|
|
|
Section 510.
|
|
Delay or Omission Not Waiver
|
|
|
39
|
|
|
|
|
|
|
Section 511.
|
|
Control by Holders
|
|
|
39
|
|
|
|
|
|
|
Section 512.
|
|
Waiver of Past Defaults
|
|
|
39
|
|
|
|
|
|
|
Section 513.
|
|
Waiver of Stay or Extension Laws
|
|
|
40
|
|
|
|
|
|
|
Section 514.
|
|
Undertaking for Costs
|
|
|
40
|
|
|
|
|
ARTICLE VI.
|
|
|
THE TRUSTEE
|
|
|
|
|
|
|
Section 601.
|
|
Notice of Defaults
|
|
|
40
|
|
|
|
|
|
|
Section 602.
|
|
Certain Rights and Obligations of Trustee
|
|
|
41
|
|
|
|
|
|
|
Section 603.
|
|
Not Responsible for Recitals or Issuance of Securities
|
|
|
44
|
|
|
|
|
|
|
Section 604.
|
|
May Hold Securities
|
|
|
44
|
|
|
|
|
|
|
Section 605.
|
|
Money Held in Trust
|
|
|
45
|
|
|
|
|
|
|
Section 606.
|
|
Compensation and Reimbursement
|
|
|
45
|
|
|
|
|
|
|
Section 607.
|
|
Corporate Trustee Required; Eligibility; Conflicting Interests
|
|
|
46
|
|
|
|
|
|
|
Section 608.
|
|
Resignation and Removal; Appointment of Successor
|
|
|
46
|
|
ii
|
|
|
|
|
|
|
|
|
Section 609.
|
|
Acceptance of Appointment by Successor
|
|
|
48
|
|
|
|
|
|
|
Section 610.
|
|
Merger, Conversion, Consolidation or Succession to Business
|
|
|
50
|
|
|
|
|
|
|
Section 611.
|
|
Appointment of Authenticating Agent
|
|
|
50
|
|
|
|
|
|
|
Section 612.
|
|
Preferential Collection of Claims Against Company
|
|
|
52
|
|
|
|
|
ARTICLE VII.
|
|
|
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
|
|
|
|
|
|
|
Section 701.
|
|
Company to Furnish Trustee Names and Addresses of Holders
|
|
|
52
|
|
|
|
|
|
|
Section 702.
|
|
Preservation of Information; Communications to Holders
|
|
|
53
|
|
|
|
|
|
|
Section 703.
|
|
Reports by Trustee
|
|
|
53
|
|
|
|
|
|
|
Section 704.
|
|
Reports by Company
|
|
|
53
|
|
|
|
|
ARTICLE VIII.
|
|
|
CONSOLIDATION, MERGER AND SALES
|
|
|
|
|
|
|
Section 801.
|
|
Company May Consolidate, Etc., Only on Certain Terms
|
|
|
54
|
|
|
|
|
|
|
Section 802.
|
|
Successor Corporation Substituted for Company
|
|
|
55
|
|
|
|
|
ARTICLE IX.
|
|
|
SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
Section 901.
|
|
Supplemental Indentures Without Consent of Holders
|
|
|
55
|
|
|
|
|
|
|
Section 902.
|
|
Supplemental Indentures With Consent of Holders
|
|
|
56
|
|
|
|
|
|
|
Section 903.
|
|
Execution of Supplemental Indentures
|
|
|
57
|
|
|
|
|
|
|
Section 904.
|
|
Effect of Supplemental Indentures
|
|
|
58
|
|
|
|
|
|
|
Section 905.
|
|
Conformity With Trust Indenture Act
|
|
|
58
|
|
|
|
|
|
|
Section 906.
|
|
Reference in Securities to Supplemental Indentures
|
|
|
58
|
|
|
|
|
|
|
Section 907.
|
|
Subordination Unimpaired
|
|
|
58
|
|
|
|
|
ARTICLE X.
|
|
|
COVENANTS
|
|
|
|
|
|
|
Section 1001.
|
|
Payment of Principal, Premium, if Any, and Interest
|
|
|
58
|
|
|
|
|
|
|
Section 1002.
|
|
Maintenance of Office or Agency
|
|
|
59
|
|
|
|
|
|
|
Section 1003.
|
|
Money for Securities Payments to Be Held in Trust
|
|
|
59
|
|
|
|
|
|
|
Section 1004.
|
|
Additional Amounts
|
|
|
61
|
|
|
|
|
|
|
Section 1005.
|
|
Statement as to Compliance; Notice of Certain Defaults
|
|
|
62
|
|
|
|
|
|
|
Section 1006.
|
|
Payment of Taxes and Other Claims
|
|
|
62
|
|
|
|
|
|
|
Section 1007.
|
|
Corporate Existence
|
|
|
63
|
|
|
|
|
|
|
Section 1008.
|
|
Waiver of Certain Covenants
|
|
|
63
|
|
|
|
|
|
|
Section 1009.
|
|
Calculations; Original Issue Discount
|
|
|
63
|
|
iii
|
|
|
|
|
|
|
|
|
ARTICLE XI.
|
|
|
REDEMPTION OF SECURITIES
|
|
|
|
|
|
|
Section 1101.
|
|
Applicability of Article
|
|
|
63
|
|
|
|
|
|
|
Section 1102.
|
|
Election to Redeem; Notice to Trustee
|
|
|
64
|
|
|
|
|
|
|
Section 1103.
|
|
Selection by Trustee of Securities to Be Redeemed
|
|
|
64
|
|
|
|
|
|
|
Section 1104.
|
|
Notice of Redemption
|
|
|
64
|
|
|
|
|
|
|
Section 1105.
|
|
Deposit of Redemption Price
|
|
|
66
|
|
|
|
|
|
|
Section 1106.
|
|
Securities Payable on Redemption Date
|
|
|
66
|
|
|
|
|
|
|
Section 1107.
|
|
Securities Redeemed in Part
|
|
|
66
|
|
|
|
|
ARTICLE XII.
|
|
|
SINKING FUNDS
|
|
|
|
|
|
|
Section 1201.
|
|
Applicability of Article
|
|
|
67
|
|
|
|
|
|
|
Section 1202.
|
|
Satisfaction of Sinking Fund Payments With Securities
|
|
|
67
|
|
|
|
|
|
|
Section 1203.
|
|
Redemption of Securities for Sinking Fund
|
|
|
68
|
|
|
|
|
ARTICLE XIII.
|
|
|
REPAYMENT AT THE OPTION OF HOLDERS
|
|
|
|
|
|
|
Section 1301.
|
|
Applicability of Article
|
|
|
68
|
|
|
|
|
ARTICLE XIV.
|
|
|
MEETINGS OF HOLDERS
|
|
|
|
|
|
|
Section 1401.
|
|
Purposes for Which Meetings May Be Called
|
|
|
68
|
|
|
|
|
|
|
Section 1402.
|
|
Call, Notice and Place of Meetings
|
|
|
69
|
|
|
|
|
|
|
Section 1403.
|
|
Persons Entitled to Vote at Meetings
|
|
|
69
|
|
|
|
|
|
|
Section 1404.
|
|
Quorum; Action
|
|
|
69
|
|
|
|
|
|
|
Section 1405.
|
|
Determination of Voting Rights; Conduct and Adjournment of Meetings
|
|
|
70
|
|
|
|
|
|
|
Section 1406.
|
|
Counting Votes and Recording Action of Meetings
|
|
|
71
|
|
|
|
|
ARTICLE XV.
|
|
|
SUBORDINATION
|
|
|
|
|
|
|
Section 1501.
|
|
Securities Subordinated to Senior Indebtedness
|
|
|
71
|
|
|
|
|
|
|
Section 1502.
|
|
Subrogation
|
|
|
74
|
|
|
|
|
|
|
Section 1503.
|
|
Obligation of Company Unconditional
|
|
|
74
|
|
|
|
|
|
|
Section 1504.
|
|
Payments on Securities Permitted
|
|
|
75
|
|
|
|
|
|
|
Section 1505.
|
|
Effectuation of Subordination by Trustee
|
|
|
75
|
|
|
|
|
|
|
Section 1506.
|
|
Knowledge of Trustee
|
|
|
75
|
|
|
|
|
|
|
Section 1507.
|
|
Trustee’s Relation to Senior Indebtedness
|
|
|
76
|
|
|
|
|
|
|
Section 1508.
|
|
Rights of Holders of Senior Indebtedness Not Impaired
|
|
|
77
|
|
iv
|
|
|
|
|
|
|
|
|
ARTICLE XVI.
|
|
|
MISCELLANEOUS PROVISIONS
|
|
|
|
|
|
|
Section 1601.
|
|
Securities in Foreign Currencies
|
|
|
77
|
|
|
|
|
|
|
Section 1602.
|
|
Exemption from Individual Liability
|
|
|
77
|
|
v
SUBORDINATED INDENTURE, dated as of April 3, 2017 (the “Indenture”), among HOME
BANCSHARES, INC., a corporation duly organized and existing under the laws of the State of Arkansas (the “Company”), having its principal office at 719 Harkrider, Suite 100, Conway, Arkansas 72032, and U.S. BANK NATIONAL ASSOCIATION, a
national banking association having a corporate trust office at 225 Asylum Street, 23rd Floor, Hartford, Connecticut 06103, as Trustee (the “Trustee”).
RECITALS
The Company has
duly authorized the execution and delivery of this Indenture to provide for the issuance from time to time of its unsecured subordinated debentures, notes or other evidences of indebtedness (the “Securities”), unlimited as to principal
amount, to bear such rates of interest, to mature at such time or times, to be issued in one or more series and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this Indenture and all things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act of
1939, as amended, that are required to be part of this Indenture and shall, to the extent applicable, be governed by such provisions.
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 each other, the holders of Senior Indebtedness, and all Holders of the Securities or of series thereof, as follows:
ARTICLE I.
DEFINITIONS
AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly provided or unless the context otherwise requires:
|
|
(1)
|
the terms defined in this Article have the meanings assigned to them in this Article, and include the plural as well as the singular;
|
|
|
(2)
|
all other terms used herein which are defined in the Trust Indenture Act, either directly or by reference therein, have the meanings assigned to them therein;
|
|
|
(3)
|
all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with generally accepted accounting principles and, except as otherwise herein expressly provided, the term
“generally accepted accounting principles” with respect to any computation required or permitted hereunder shall mean such accounting principles as are generally accepted at the date of such computation;
|
|
|
(4)
|
the words “herein,” “hereof,” “hereto,” “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article, Section or other
subdivision;
|
|
|
(5)
|
the word “or” is not exclusive;
|
|
|
(6)
|
all words in the singular include the plural and all words in the plural include the singular; and
|
|
|
(7)
|
the word “including” means “including without limitation.”
|
Certain terms
which are used principally in certain Articles hereof are defined in those Articles.
“Act” when used with respect to any
Holders, has the meaning specified in Section 104.
“Additional Amounts” means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to be paid by the Company in respect of certain taxes imposed on Holders specified therein and which 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. The terms “controlling” and “controlled” have the meanings correlative to the foregoing.
“Agent” means any Security Registrar, Paying Agent, Authenticating Agent or Depository Custodian.
“Applicable Procedures” means, with respect to any payment, tender, redemption, transfer or exchange of or for beneficial interests
in any global Security, the rules and procedures of the Depository, Euroclear and Clearstream that apply to such payment, tender, redemption, transfer or exchange.
“Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 611 to act on behalf of the Trustee to
authenticate Securities of one or more series.
“Authorized Newspaper” means a newspaper, in an official language of the country
of publication or in the English language, customarily published on each Business Day, whether or not published on Legal Holidays, and of general circulation in each place in connection with which the term is used or in the financial community of
each such place. Where successive publications are required to be made in Authorized Newspapers, the successive publications may be made in the same or in different newspapers in the same city meeting the foregoing requirements and in each case on
any Business Day.
2
“Bank” means:
|
|
(i)
|
any institution organized under the laws of the United States, any State of the United States, the District of Columbia, any territory of the United States, Puerto Rico, Guam, American Samoa or the U.S. Virgin Islands
which
|
|
|
(a)
|
accepts deposits that the depositor has a legal right to withdraw on demand, and
|
|
|
(b)
|
engages in the business of making commercial loans, or
|
|
|
(ii)
|
any trust company organized under any of the foregoing laws.
|
“Board of Directors”
means the board of directors of the Company or any committee of that board duly authorized to act for the Company hereunder.
“Board
Resolution” means 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 any duly authorized committee thereof, and to be in full force and effect on
the date of such certification, and delivered to the Trustee.
“Business Day” except as may otherwise be provided herein or in
any Security, means when used with respect to any Place of Payment, any day, other than a Saturday or a Sunday, that is neither a Legal Holiday nor a day on which the Trustee or banking institutions are authorized or required by law, regulation or
executive order to close in that Place of Payment.
“Clearstream” means Clearstream Banking S.A. and any successor thereto.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under the Securities Exchange
Act of 1934 or, if at any time after the execution of this Indenture such Commission is not existing and performing the duties now assigned to it under the Trust Indenture Act, then the body performing such duties at such time.
“Company” means the Person named as the “Company” in the first paragraph of this instrument until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Company” shall mean such successor corporation, and any other obligor upon the Securities.
“Company Request” and “Company Order” mean a written request or order, as the case may be, signed in the name of the
Company by the Chairman of the Board of Directors, the President, a Vice President, the Chief Operating Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Corporate Trust Office” means the office of the Trustee, at which at any particular time its corporate trust business for purposes
of this Indenture shall be administered, which office at
3
the date of original execution of this Indenture is located at 225 Asylum Street, 23rd Floor, Hartford, Connecticut 06103, Attention: Home Bancshares, Inc., and for purposes of Section 1002
such office shall also mean the office or agency of the Trustee located at 111 Fillmore Avenue, St. Paul, MN 55107, Attention: Home Bancshares, Inc., or such other address as to which the Trustee may give notice to the Company and the Holders, or
the principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time to time by notice to the Holders and the Company).
“Corporation” includes corporations, associations, limited liability companies and business trusts.
“Defaulted Interest” has the meaning specified in Section 307.
“Depository” means, with respect to any Security issuable or issued in the form of one or more global Securities, the Person
designated as Depository by the Company pursuant to Section 301, which must be a clearing agency registered under the Securities Exchange Act of 1934, as amended, if then required by applicable law and regulation and, if so provided pursuant to
Section 301 with respect to any Security, any successor to such Person. If at any time there is more than one such Person or “Depository” shall mean, with respect to any Securities, the qualifying entity which has been appointed with
respect to such Securities.
“Depository Custodian” means the Trustee as custodian with respect to the global Securities or any
successor entity thereto.
“Dollars” or “$” means a dollar or other equivalent unit in the currency of the United
States, except as may otherwise be provided herein or in any Security.
“Euroclear” means Euroclear Bank, S.A./N.V., as operator
of the Euroclear Clearance System, and any successor thereto.
“Event of Default” has the meaning specified in Section 501.
“Federal Reserve” means the Board of Governors of the Federal Reserve System or its delegee, and any successors thereto.
“Government Obligations” with respect to any Securities, unless otherwise specified herein or therein, means:
|
|
(i)
|
direct obligations of the United States of America or the government or governments which issued the currency, currency unit or composite currency in which any Securities 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 or governments which issued the currency, currency unit or composite
currency in which such Securities are payable, the full and timely payment of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America or such other government or governments, which, in either case,
are not callable or redeemable at the option of the issuer or issuers thereof;
|
4
or a depository receipt issued by a bank or trust company as custodian with respect to any Government Obligation
described in (i) or (ii) 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” in the case of any Registered Security, means the Person
in whose name such Security is registered in the Security Register.
“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 with respect to any Security shall include the terms of such 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 which relate solely to other series of Securities for which such Person
is 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.
“Independent Public Accountants” means accountants or a firm of
accountants that are independent public accountants with respect to the Company within the meaning of the Securities Act of 1933, as amended, and the rules and regulations promulgated by the Commission thereunder, who may be the registered
independent public accountants regularly retained by the Company or who may be other registered independent public accountants. Such accountants or firm shall be entitled to rely upon any Opinion of Counsel as to the interpretation of any legal
matters relating to the Indenture or certificates required to be provided hereunder.
“interest” with respect to any Original
Issue Discount Security which by its terms bears interest only after Maturity, means interest payable after Maturity and, with respect to any Security which provides for the payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
“Interest Payment Date” with respect to any Security, means the Stated Maturity of an installment of
interest on such Security.
5
“Legal Holiday” except as otherwise may be provided herein or in any Securities, with
respect to any Place of Payment or other location, means a Saturday, a Sunday or a day on which banking institutions or trust companies in such Place of Payment or other location are not authorized or obligated to be open.
“Maturity” with respect to any Security, means the date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated Maturity or by declaration of acceleration, notice of redemption, notice of option to elect repayment or otherwise.
“NASDAQ” means The NASDAQ Stock Market LLC and any successors thereto.
“Officer’s Certificate” means a certificate signed by the Chairman of the Board of Directors, the President, a Vice President,
the Chief Operating Officer, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, and delivered to the Trustee.
“Opinion of Counsel” except as otherwise provided herein or in any Security, means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably acceptable to the Trustee.
“Original Issue Discount
Security” means a Security issued pursuant to this Indenture which provides for declaration of an amount less than the principal thereof to be due and payable upon acceleration pursuant to Section 502.
“Outstanding” with respect to Securities, means, as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
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(i)
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Securities theretofore cancelled by the Trustee or the Security Registrar or delivered to the Trustee or the Security Registrar for cancellation;
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(ii)
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Securities, or portions thereof, for whose payment or redemption or repayment at the option of the Holder 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, provided that, if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made;
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(iii)
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Securities, except to the extent provided in Section 403, with respect to which the Company has effected defeasance and/or covenant defeasance pursuant to Section 403 hereof; and
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(iv)
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Securities which 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 it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid obligations of the Company;
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6
provided, however, that in determining whether the Holders of the requisite principal amount of Outstanding
Securities have given any request, demand, authorization, direction, notice, consent or waiver hereunder or are present at a meeting of Holders of Securities for quorum purposes and for purposes of making the calculations required by
Section 313 of the Trust Indenture Act, (A) 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 purposes shall be
equal to the amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security would be declared (or shall have been declared to be) due and payable upon a declaration of acceleration pursuant to Section 502 at
the time of such determination or calculation; (B) the principal amount of any Security denominated other than in Dollars 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 by the Company 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 (A) above) of such Security; and (C) Securities owned by the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor,
shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making any such calculation or relying upon any such request, demand, authorization, direction, notice, consent or waiver,
only Securities which a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded, and provided further that Securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of the Company or such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or interest on any
Security on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of
Payment” with respect to any Security, means the place or places where the principal of (and premium, if any) and interest on the Securities of that series are payable as specified in or pursuant to Section 301(8) or Section 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 lost, destroyed, mutilated or stolen Security shall be deemed to
evidence the same debt as the lost, destroyed, mutilated or stolen Security.
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“Principal Subsidiary Bank” means (i) any Subsidiary Bank, the consolidated assets
of which as set forth in the most recent statement of condition of such Bank constitute 40% or more of the Company’s consolidated assets as determined from the most recent quarterly balance sheet of the Company or (ii) any Subsidiary Bank
designated as a Principal Subsidiary Bank by the Board of Directors, provided that if the Federal Reserve notifies the Company that any Subsidiary Bank that is a Principal Subsidiary Bank applying the tests in clause (i) or (ii) above does not
qualify as a “major subsidiary depository institution” within the requirements of the Federal Reserve’s risk-based capital guidelines or regulations applicable to bank holding companies, such Subsidiary Bank will not be a Principal
Subsidiary Bank from and after the time the Company receives from the Federal Reserve such a notice.
“Redemption Date” with
respect to any Security or portion thereof to be redeemed, means the date fixed for such redemption by or pursuant to this Indenture.
“Redemption Price” with respect to any Security or portion thereof to be redeemed, means the price at which it is to be redeemed as
determined by or pursuant to the provisions of this Indenture.
“Registered Security” means any Security established pursuant to
Section 201 which is registered and the transfer or exchange thereof is registrable in the Security Register.
“Regular Record
Date” for the interest payable on any Registered Security on any Interest Payment Date therefor means the date, if any, specified in such Security as the “Regular Record Date.”
“Responsible Officer” when used with respect to the Trustee, means any officer of the Trustee in its Corporate Trust Office who at
the time shall have direct responsibility for the administration of this Indenture and also means, with respect to a particular corporate trust matter, any other officer to whom such matter is referred because of his or her knowledge of and
familiarity with the particular subject.
“Security” or “Securities” means any Security or Securities, as the case may
be, 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 any series as to which such Person is not
Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 305.
“Senior Indebtedness” means:
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(i)
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the principal and any premium or interest for money borrowed or purchased by the Company, including but not limited to indebtedness evidenced by bonds, debentures, notes or similar instruments;
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(ii)
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an obligation arising from
off-balance
sheet guarantees and direct credit substitutes;
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(iii)
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reimbursement obligations with respect to letters of credit, bankers’ acceptances or similar facilities;
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(iv)
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obligations issued or assumed as the deferred purchase price of property or services (but excluding trade accounts payable or accrued liabilities arising in the ordinary course of business);
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(v)
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capital lease obligations;
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(vi)
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any obligations associated with derivative products, including but not limited to securities contracts, foreign currency exchange contracts, swap agreements (including interest rate and foreign exchange rate swap
agreements), cap agreements, floor agreements, collar agreements, interest rate agreements, foreign exchange rate agreements, options, commodity futures contracts, commodity option contracts and similar financial instruments;
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(vii)
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obligations of others described in the preceding clauses that the Company has guaranteed or for which the Company is otherwise liable or that are secured by any lien on any of the Company’s property or assets; and
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(viii)
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obligations to general creditors, as defined and required by the Board of Governors of the Federal Reserve System under its final Basel III capital rules in 78 F.R. 62018, Oct. 11, 2013 for subordinated debt to qualify
as Tier 2 capital,
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in each case, whether outstanding on the date this Indenture becomes effective, or created, assumed or incurred after
that date, unless in the instrument creating or evidencing any such indebtedness or obligation, or pursuant to which the same is outstanding, it is provided that such indebtedness or obligation is not superior in right of payment to the Securities
or to other debt that is pari passu with or subordinate to the Securities.
Senior Indebtedness excludes any:
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(i)
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trade accounts payables arising in the ordinary course of the Company’s business;
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(ii)
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any Securities issued pursuant to the Indenture, except if such Securities are not, or no longer are, subject to the subordination provision of the Indenture; or
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(iii)
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any indebtedness that expressly states that it is junior to, or ranks equally in right of payment with, the Securities.
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“Special Record Date” for the payment of any Defaulted Interest on any registered Security means a date fixed by the Company
pursuant to Section 307.
“Stated Maturity” with respect to any Security or any installment of principal thereof or
interest thereon, means the date specified in such Security 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.
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“Subsidiary” means any corporation of which at the time of determination the Company
and/or one or more Subsidiaries owns or controls directly or indirectly more than 50% of the shares of Voting Stock.
“Subsidiary
Bank” means any Subsidiary which is a Bank.
“Trust Indenture Act” means the Trust Indenture Act of 1939 as in force at the
date as of which this instrument was executed, except as provided in Section 905; provided, however, that in the event the Trust Indenture Act is amended after such date, “Trust Indenture Act” means, with respect to the Securities of
any series issued after such date, the Trust Indenture Act as so amended.
“Trustee” means the Person named as the
“Trustee” in the first paragraph of this instrument until a successor Trustee shall have become such with respect to one or more series of Securities pursuant to the applicable provisions of this Indenture, and thereafter
“Trustee” shall mean each Person who is then a Trustee hereunder; provided, however, that if at any time there is more than one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities of any
series shall mean the Trustee with respect to the Securities of that series.
“United States” except as otherwise provided
herein or in any Security, means the United States of America (including the States and the District of Columbia), its territories and possessions and other areas subject to its jurisdiction.
“United States Alien” except as otherwise provided herein or in any Security, means any Person who, for United States Federal income
tax purposes, is a foreign corporation, a
non-resident
alien individual, a
non-resident
alien fiduciary of a foreign estate or trust, or a foreign partnership one or
more of the members of which is, for United States Federal income tax purposes, a foreign corporation, a
non-resident
alien individual or a
non-resident
alien fiduciary
of a foreign estate or trust.
“Vice President” with respect to the Company or the Trustee, means any vice president, whether or
not designated by a number or a word or words added before or after the title “Vice President.”
“Voting Stock” means
stock of a corporation of the class or classes having general voting power under ordinary circumstances to elect at least a majority of the board of directors, managers or trustees of such corporation, provided that, for the purposes hereof, stock
which carries only the right to vote conditionally on the happening of an event shall not be considered voting stock whether or not such event shall have happened.
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 Officer’s Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the
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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 or any of them 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
and in any applicable Security (except Section 1005) shall include:
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(1)
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a statement that the individual signing such certificate or opinion has read such condition or covenant and the definitions herein and in any applicable Security relating thereto;
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(2)
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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;
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(3)
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a statement that, in the opinion of such individual, he or she has made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
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(4)
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a statement as to whether, in the opinion of such individual, such condition or covenant has been complied with.
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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 with respect to some matters and one or more other
such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know,
that the certificate or opinion or representations with respect to the matters upon which such officer’s certificate or opinion is based are erroneous. Any such certificate or Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or officers of the Company stating that the information with respect to such factual matters is in the possession of the Company unless such counsel knows, or in the
exercise of reasonable care should know, that the certificate or opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture or any Security, they may, but need not, be consolidated and form one instrument.
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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 may be embodied in and evidenced by one or more instruments of substantially similar tenor signed by such Holders in person or by agent duly appointed in writing. 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 and 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 315 of the Trust Indenture Act) 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 1406.
Without limiting the generality of this Section 104, unless otherwise established in or pursuant to a Board Resolution or set forth or
determined in an Officer’s Certificate, or established in one or more indentures supplemental hereto, pursuant to Section 301, a Holder, including a Depository that is a Holder of a global Security, may make, give or take, by a proxy, or
proxies, duly appointed in writing, any request, demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders, and a Depository that is a Holder of a global Security may
provide its proxy or proxies to the beneficial owners of interests in any such global Security through such Depository’s standing instructions and customary practices.
The Trustee may fix a record date, which shall be not more than 30 days prior to the first solicitation of Holders, for the purpose of
determining the Persons who are beneficial owners of interest in any permanent global Security held by a Depository entitled under the procedures of such Depository to make, give or take, by a proxy or proxies duly appointed in writing, any request,
demand, authorization, direction, notice, consent, waiver or other action provided in this Indenture to be made, given or taken by Holders to the Trustee. If such a record date is fixed, the Holders on such record date or their duly appointed proxy
or proxies, and only such Persons, shall be entitled to make, give or take such request, demand, authorization, direction, notice, consent, waiver or other action, whether or not such Holders remain Holders after such record date. No such request,
demand, authorization, direction, notice, consent, waiver or other action shall be valid or effective if made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved in any reasonable
manner which the Trustee deems sufficient and in accordance with such reasonable rules as the Trustee may determine; and the Trustee may in any instance require further proof with respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered Securities held by any Person, and the date of the
commencement and the date of termination of holding the same, shall be proved by the Security Register.
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(d) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent, waiver or other Act, the Company may at its option, by Board Resolutions, fix in advance a record date, which shall be not more than 30 days prior to the first solicitation
of such Holders, for the determination of Holders of Registered Securities entitled to give such request, demand, authorization, direction, notice, consent, waiver or other Act, but the Company shall have no obligation to do so. 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 Registered Securities 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, whether or not such Holders remain Holders after such record date; provided, that unless such request, demand, authorization, direction, notice, consent, waiver or other Act shall have become effective by virtue of the requisite
percentage having been obtained prior to the date that is 90 days after such record date, any such Act previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
(e) Any request, demand, authorization, direction, notice, consent, waiver or other action by 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 or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent or the Company in reliance thereon, whether or not notation of such action is made upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
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(1)
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the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office; or
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(2)
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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, or overnight courier
guaranteeing next day delivery, to the Company addressed to the attention of its Treasurer 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 a
Responsible Officer of the Trustee by the Company.
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Section 106. Notice to Holders; Waiver.
Except as otherwise expressly provided herein or in any Security, where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given to Holders of Registered Securities if in writing and mailed, first-class postage prepaid, to each Holder of a
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Registered Security affected by such event, at his or her address as it appears in the Security Register, 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, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder of a Registered Security shall affect the sufficiency of such notice with respect to other Holders of Registered Securities. Any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given or provided. In the case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made with the approval of the Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice 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.
Notwithstanding any other provision of this Indenture or any Security, where this Indenture or any global
Security provides for notice of any event (including any notice of redemption or repurchase) to a Holder of a global Security (whether by mail or otherwise), such notice shall be sufficiently given if given to the Depository (or its designee)
pursuant to the standing instructions from the Depository or its designee, including by electronic mail in accordance with Applicable Procedures.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent, election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice may be in an official language of the country of publication.
Section 108. Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with the duties imposed pursuant to Section 318(c) of the Trust Indenture Act, such
imposed duties shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein, the Trust Indenture Act reconciliation and tie, and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind its successors and assigns, whether so expressed or not.
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Section 111. Separability Clause.
In case any provision in this Indenture, any Security 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 112. Benefits of
Indenture.
Nothing in this Indenture or any Security, express or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent and their successors hereunder, the Holders of Securities and holders of Senior Indebtedness, any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture and the Securities shall be governed by and construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said state.
Section 114. Legal
Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated Maturity of any Security is not a Business Day at any
Place of Payment, then (notwithstanding any other provision of this Indenture or any Security, other than a provision in any Security that specifically states that such provision shall apply in lieu of this Section) payment of interest or any
Additional Amounts or principal (and premium, if any) 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 or Redemption Date, or at the Stated Maturity, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date, Redemption Date or Stated Maturity, as the case may be.
Section 115. Jury Trial Waiver.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO A TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 116. U.S.A. PATRIOT Act.
The Company acknowledges 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.
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ARTICLE II.
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security and temporary global Security issued pursuant to this Indenture shall be in the form established by or pursuant to a
Board Resolution or in one or more indentures supplemental hereto, shall have appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or any indenture supplemental hereto and may have such
letters, numbers or other marks of identification and such legends or endorsements placed thereon as may, consistently herewith, be determined by the officers executing such Security, as evidenced by their execution of such Security.
Definitive Securities 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, as evidenced by their execution of such Securities.
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 referred to in the within-mentioned Indenture.
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Dated:
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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Authorized Signatory
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Section 203. Securities in Global Form.
If Securities of a series are issuable in global form, any such Security may provide that it shall represent the aggregate amount of
Outstanding Securities of such series from time to time endorsed thereon and may also provide that the aggregate amount of Outstanding Securities represented thereby may from time to time be increased or reduced to reflect exchanges pursuant to a
schedule thereto. Any endorsement of any Security in global form to reflect the amount, or any increase or decrease in the amount, or changes in the rights of Holders, of Outstanding Securities represented thereby shall be made in such manner and by
such Person or Persons as shall be specified therein, pursuant to Applicable Procedures, or in the Company Order to be delivered pursuant to Section 303 or 304 with respect thereto. 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 instructions given by the Person or Persons specified therein, pursuant to Applicable Procedures, or in the applicable
Company Order.
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The provisions of the immediately preceding sentence 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 immediately preceding sentence.
Notwithstanding the provisions of Section 307, unless otherwise specified as contemplated by Section 301, payment of principal of
and any premium and interest on any Security in permanent global form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as provided in the preceding paragraph, in the case of a permanent global
Security in registered form, the Company, the Trustee and any agent of the Company and the Trustee shall treat the Holder of such permanent global Security in registered form as the Holder of such principal amount of Outstanding Securities
represented by a permanent global Security. The Company, the Trustee, and each Agent shall have no responsibility for any actions taken or not taken by the Depository. Subject to Section 301(20), the Company initially appoints the Trustee to
act as the Registrar and Paying Agent and to act as Depository Custodian with respect to the global Securities unless provided otherwise with respect to such series. In acting hereunder and in connection with the Securities, the Paying Agent and
Registrar shall act solely as agents of the Issuer, and will not thereby assume any obligations towards or relationship of agency or trust for or with any Holder. The Trustee and each Agent are hereby authorized to act in accordance with Applicable
Procedures.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to any transfer of any interest in any Security (including any transfers between or among the Depository or other beneficial owners of interests in any Security in global
form) other than to require delivery of such certificates and other documentation or evidence as are expressly required by, and to do so if and when expressly required by the terms of, this Indenture, and to examine the same to determine substantial
compliance as to form with the express requirements hereof. Neither the Trustee, or any of it respective agents, shall have responsibility for any actions taken or not taken by a Depository.
The Trustee shall have no responsibility or obligation to any beneficial owner of a Security in global form, a member of, or a participant in,
the applicable Depository or other Person with respect to the accuracy of the records of a Depository or its nominee or of any participant or member thereof, with respect to any ownership interest in the Securities or with respect to the delivery to
any participant, member, beneficial owner or other Person (other than the Depository) of any notice (including any notice of redemption or purchase) or the payment of any amount or delivery of any Securities (or other security or property) under or
with respect to such Securities. All notices and communications to be given to the Holders and all payments to be made to Holders in respect of the Securities shall be given or made only to or upon the order
17
of the registered Holders (which shall be the Depository or its nominee in the case of a Security in global form). The rights of beneficial owners in any Security in global form shall be
exercised only through the applicable Depository subject to the applicable rules and procedures of the Depository. The Trustee may rely and shall be fully protected in relying upon information furnished by the applicable Depository with respect to
its members, participants and any beneficial owners.
ARTICLE III.
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated and delivered under this Indenture is unlimited. The Securities shall
be subordinated in right of payment to Senior Indebtedness as provided in Article XV.
The Securities may be issued in one or more series.
There shall be established in or pursuant to one or more Board Resolutions, and set forth in an Officer’s Certificate, or established in one or more indentures supplemental hereto,
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(1)
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the title of the Securities and the series in which such Securities shall be included;
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(2)
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any limit upon the aggregate principal amount of the Securities of such title or the Securities of such series which may be authenticated and delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or 1502 or the terms of such Securities);
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(3)
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whether Securities of the series are to be issuable as Registered Securities;
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(4)
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whether any Securities of the series are to be issuable initially or otherwise in global form and, if so,
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(i)
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whether beneficial owners of interests in any such global Security may exchange such interest 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 specified in Section 305,
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(ii)
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the name of the Depository with respect to any global Security, and
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(iii)
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the manner in which interest payable on a global Security will be paid;
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(5)
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the date as of which any global Security representing Outstanding Securities of the series shall be dated if other than the date of original issuance of the first Security of the series to be issued;
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18
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(6)
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the date or dates, or the method, if any, by which such date or dates shall be determined, on which the principal of such Securities is payable;
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(7)
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the rate or rates at which such Securities shall bear interest, if any, or the method, if any, by which such rate or rates are to be determined, the date or dates, if any, from which such interest shall accrue or the
method, if any, by which such date or dates are to be determined, the Interest Payment Dates, if any, on which such interest shall be payable and the Regular Record Date, if any, for the interest payable on Registered Securities on any Interest
Payment Date, whether and under what circumstances Additional Amounts on such Securities or any of them shall be payable, and the basis upon which interest shall be calculated if other than that of a
360-day
year of twelve
30-day
months;
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(8)
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the Place of Payment, if any in addition to or other than the Corporate Trust Office, of such Securities, the place where any Registered Securities of the series may be surrendered for registration of transfer, and the
place where Securities of the series may be surrendered for exchange and notices or demands to or upon the Company in respect of the Securities of the series and this Indenture may be served;
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(9)
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whether the Securities of the series or any of them are to be redeemable at the option of the Company and, if so, the period or periods within which, the price or prices at which and the other terms and conditions upon
which such Securities may be redeemed, in whole or in part, at the option of the Company;
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(10)
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whether the Company is obligated to redeem or purchase Securities of the series or any of them pursuant to any sinking fund or at the option of any Holder thereof and, if so, the period or periods within which, the
price or prices at which and the other terms and conditions upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such obligation, and any provisions for the remarketing of the Securities of the series so
redeemed or purchased;
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(11)
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the denominations in which Registered Securities of the series, if any, shall be issuable if other than denominations of $1,000 and any integral multiple thereof;
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(12)
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if other than the principal amount thereof, the portion of the principal amount of the Securities of the series or any of them which shall be payable upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
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(13)
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if other than such currency of the United States of America as at the time of payment is legal tender for payment of public or private debts, the currency, composite currencies or currency unit or units in which payment
of the principal of (and premium, if any) or interest, if any, on or any Additional Amounts in respect of the Securities of the series or any of them shall be payable;
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(14)
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if the principal of (and premium, if any) or interest, if any, on or any Additional Amounts in respect of the
Securities of the series or any of them are to be
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payable, at the election of the Company or a Holder thereof, in a currency, composite currencies or currency unit or units other than that in which the Securities of the series or any of them are
stated to be payable, the period or periods within which, and the terms and conditions upon which, such election may be made;
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(15)
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whether the amount of payments of principal of (and premium, if any) or interest (including Additional Amounts), if any, on the Securities of the series may be determined with reference to an index, formula or other
method (which index, formula or method may be based, without limitation, on one or more currencies, currency units, composite currencies, commodities, equity indices or other indices), and, if so, the terms and conditions upon which and the manner
in which such amounts shall be determined and paid or payable;
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(16)
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whether the principal of (and premium, if any) or interest (including Additional Amounts), if any, on the Securities of the series are to be payable, at the election of the Company or any Holder thereof or otherwise, in
a currency or currencies, currency unit or units or composite currency or currencies other than that in which such Securities or any of them are denominated or stated to be payable, the period or periods within which, and the other terms and
conditions upon which, such election, if any, may be made, and the time and manner of determining the exchange rate between the currency or currencies, currency unit or units or composite currency or currencies in which such Securities or any of
them 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 or any of them are to be so payable;
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(17)
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any deletions from, modifications of or additions to the Events of Default or covenants of the Company with respect to the Securities of the series or any of them, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
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(18)
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the applicability, if any, of Section 403 to the Securities of the series and any provisions in modification of, in addition to or in lieu of any of the provisions of Section 403;
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(19)
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if the Securities of the 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 terms of such certificates, documents or conditions;
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(20)
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if there is more than one Trustee, the identity of the Trustee and, if not the Trustee, the identity of each Security Registrar, Paying Agent and/or Authenticating Agent with respect to the Securities of the series;
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(21)
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whether any of the Securities of a series shall be issued as Original Issue Discount Securities; and
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20
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(22)
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any other terms of the Securities of the series or any of them (which terms shall not be inconsistent with the provisions of this Indenture).
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All Securities of any one series shall be substantially identical except as to denomination and the rate or rates of interest, if any, and
Stated Maturity, the date from which interest, if any, shall accrue and except as may otherwise be provided by the Company in or pursuant to one or more Board Resolutions and set forth in such Officer’s Certificate or in any indenture or
indentures supplemental hereto pertaining to such series of Securities. All Securities of any one series need not be issued at the same time and, unless otherwise so provided by the Company, a series may be reopened for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series were established by action taken by or pursuant to a Board
Resolution, the Board Resolution shall be delivered to the Trustee at or prior to the delivery of the Officer’s Certificate setting forth the terms of such series. No Officers’ Certificate shall change the Trustee’s own rights, duties
or immunities under this Indenture or with respect to any series of Securities, except as the Trustee may agree in writing.
Section 302. Denominations.
Unless otherwise established with respect to any Securities pursuant to Section 301, the Registered Securities of each series, if any,
denominated in Dollars shall be issuable in registered form without coupons in minimum denominations of $1,000 and any integral multiple thereof. Securities not denominated in Dollars shall be issuable in such denominations as are established with
respect to such Securities pursuant to Section 301.
Section 303. Execution, Authentication, Delivery
and Dating.
The Securities shall be executed on behalf of the Company by its Chairman of the Board of Directors, its President,
Treasurer or one of its Vice Presidents. The signature of any of these officers on the Securities may be manual or facsimile.
Securities
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.
At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver Securities of any series executed by the Company, to the Trustee for authentication, and, provided that the Board Resolution or Resolutions and Officer’s
Certificate or supplemental indenture or indentures with respect to such Securities referred to in Section 301 and a Company Order for the authentication and delivery of such Securities, has been delivered to the Trustee, the Trustee in
accordance with the Company Order and subject to the provisions hereof of such Securities shall authenticate and deliver such Securities. In authenticating such Securities, and accepting the additional responsibilities under this Indenture in
relation to such Securities, the Trustee shall be entitled to receive, and (subject to Sections 315(a) through 315(b) of the Trust Indenture Act) shall be fully protected in relying upon,
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(1)
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an Opinion of Counsel stating, to the effect
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21
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(a)
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that the form or forms and terms of such Securities, if any, have been established in conformity with the provisions of this Indenture;
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(b)
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that all conditions precedent to the authentication and delivery of such Securities have been complied with and that such Securities, when completed by appropriate insertion and executed and delivered by the Company to
the Trustee for authentication pursuant to this Indenture, and authenticated and delivered by the Trustee and issued by the Company in the manner and subject to any conditions specified in such Opinion of Counsel, this Indenture and such Securities
will constitute legally valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws affecting
the enforcement of creditors’ rights generally, and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding in equity or at law) and will entitle the Holders thereof to the benefits of the Indenture;
provided that such Opinion of Counsel need express no opinion as to the availability of equitable remedies; and
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(2)
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an Officer’s Certificate pursuant to Section 102 and also stating that, to the knowledge of the Person executing such certificate, no Event of Default with respect to any of the Securities shall have occurred
and be continuing.
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The Trustee shall not be required to authenticate or to cause an Authenticating Agent to authenticate
any Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee or if the Trustee, being advised by counsel, determines that such action may not lawfully be taken or if the Trustee in good faith shall determine that such action would expose the Trustee to personal liability to existing Holders.
Each Registered Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose, unless there appears on such
Security a certificate of authentication substantially in the form provided for in Section 202 or 611 executed by or on behalf of the Trustee by the manual signature of one of its authorized officers, and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such Security has been duly authenticated and delivered hereunder.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute and deliver to the Trustee and, upon Company Order the
Trustee shall authenticate and deliver, in the manner provided in Section 303, temporary Securities of such series which 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
22
issued, in registered form 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 the provisions thereof, if temporary
Securities of any series are issued, the Company shall cause definitive Securities of such series to be prepared without unreasonable delay. After the preparation of definitive Securities of any series, the temporary Securities of such series, if
any, shall be exchangeable upon request for definitive Securities of such series containing identical terms and provisions upon surrender of the temporary Securities of such series at an office or agency of the Company maintained for such purpose
pursuant to Section 1002, without charge to any Holder. Upon surrender for cancellation of any one or more temporary Securities of any series, the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of authorized denominations of the same series containing identical terms and provisions. Unless otherwise specified as contemplated by Section 301 with respect to a temporary global Security, 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.
Section 305. Registration, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the Company shall cause to be kept, at an office or agency of the Company
maintained pursuant to Section 1002 (the “Security Registrar”), a register (each such register being herein sometimes referred to as the “Security Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered Securities of each series and of transfers of the Registered Securities of such series. The Trustee is hereby initially appointed as Security Registrar for each series of
Securities. In the event that the Trustee shall cease to be Security Registrar with respect to a series of Securities, the Trustee shall have the right to examine the Security Register for such series at all reasonable times.
Upon surrender for registration of transfer of any Registered Security of any series at any office or agency of the Company maintained for
such series pursuant to Section 1002, the Company shall execute, and upon receipt of a Company Order, 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, of a like aggregate principal amount bearing a number not contemporaneously outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series
containing identical terms and provisions, in any authorized denominations, and of a like aggregate principal amount, upon surrender of the Securities to be exchanged at any such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver, the Registered Securities which the Holder making the exchange is entitled to receive.
23
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 301,
any global Security of any series shall be exchangeable for definitive Securities of such series only if
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(i)
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the Securities Depository is at any time unwilling or unable or ineligible to continue as Securities Depository and a successor depository is not appointed by the Company within 90 days of the date the Company is so
notified in writing;
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(ii)
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the Company executes and delivers to the Trustee a Company Order to the effect that such global Security shall be so exchangeable; or
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(iii)
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an Event of Default has occurred and is continuing with respect to the Securities and the Registrar has received a written request from the Depository to issue definitive securities.
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If the beneficial owners of interests in a global Security are entitled to exchange such interests for definitive Securities of such series
and of like tenor and principal amount of any authorized form and denomination, as specified as contemplated by Section 301, then without unnecessary delay but in any event not later than the earliest date on which such interests may be so
exchanged, the Company shall deliver to the Trustee definitive Securities of that series in aggregate principal amount equal to the principal amount of such global Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from time to time by the Depository or such other depository as shall be specified in the Company Order with respect thereto, and in accordance with instructions given to the
Trustee and the Depository or such other depository, as the case may be (which instructions shall be in writing but need not comply with Section 102 or be accompanied by an Opinion of Counsel), as shall be specified in the Company Order with
respect thereto to the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities of the same series without charge.
Upon receipt of a Company Order, the Trustee shall authenticate and make available for delivery, in exchange for each portion of such
surrendered global Security, a like aggregate principal amount of definitive Securities of the same series of authorized denominations and of like tenor as the portion of such global Security to be exchanged which shall be in the form of Registered
Securities, or any combination thereof, as shall be specified by the Depository. However, no such exchanges may occur during a period beginning at the opening of business 15 days before any selection of Securities of such series to be redeemed and
ending on the relevant Redemption Date. Promptly following any such exchange in part, such global Security shall be disposed of by the Trustee in accordance with its procedures for the disposition of cancelled securities in effect as of the date of
such disposition. If a Registered Security is issued in exchange for any portion of a global Security after the close of business at the office or agency where such exchange occurs on
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(i)
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any Regular Record Date and before the opening of business at such office or agency on the relevant Interest Payment Date; or
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24
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(ii)
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any Special Record Date and before the opening of business at such office or agency on the related proposed date for payment of interest or Defaulted Interest,
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interest 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 global Security is payable in accordance with the provisions of this Indenture.
All Securities endorsed thereon issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the
Company evidencing the same debt, and entitling the Holders thereof 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 for such series of Security presented) be duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the Company and such Security Registrar duly executed by the Holder thereof or
his or her attorney duly authorized in writing.
No service charge shall be made for any registration of transfer, exchange or redemption
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, 306, 906 or 1107 not involving any transfer.
Except as otherwise specified as contemplated by Section 301, the
Company shall not be required
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(i)
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to issue, register the transfer of or exchange any Securities of any series during a period beginning at the opening of business 15 days before the day of the selection for redemption of Securities of such series under
Section 1103 and ending at the close of business on the day of such selection;
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(ii)
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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 Security to be redeemed in part, the portion thereof not to be redeemed; or
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(iii)
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to issue, register the transfer of or exchange any Security which, in accordance with its terms specified as contemplated by Section 301, has been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be repaid.
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Section 306. Mutilated, Destroyed, Lost
and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, subject to the provisions of this Section 306,
the Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver in exchange therefor a new Security of the same series containing identical terms and of like principal amount.
25
If there be delivered to the Company and to the Trustee
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(i)
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evidence to their satisfaction of the destruction, loss or theft of any Security; and
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(ii)
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such security or indemnity as may be required by them to save each of them and any agent of either of them harmless,
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then, in the absence of notice to the Company or the Trustee that such Security has been acquired by a bona fide purchaser, the Company shall execute and upon
its request in a Company Order, the Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing identical terms and of like principal
amount.
Notwithstanding the foregoing provisions of this Section 306, in case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security, pay such Security. However, payment of principal of (and premium, if any), shall, except as otherwise provided in
Section 1002, be payable only at an office or agency located outside the United States.
Upon the issuance of any new Security under
this Section, the Company and/or the Trustee may require the payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security of any series issued pursuant to this Section in lieu of any destroyed, lost or stolen Security
shall constitute a separate obligation of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any
and all other Securities.
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.
Section 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise specified as contemplated by Section 301, interest on any Registered Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in whose name that Security (or one or more Predecessor Securities) is registered as of the close of business on the Regular Record Date for such interest.
Any interest on any Registered Security of any series which shall be payable, but shall not be punctually paid or duly provided for, on any
Interest Payment Date for such Registered Security (herein called “Defaulted Interest”) shall forthwith cease to be payable to the Holder on the relevant Regular Record Date by virtue of having been such Holder; and such Defaulted
26
Interest may be paid by the Company, at its election in each case, as provided in clause (1) or (2) below:
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(1)
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The Company may elect to make payment of any Defaulted Interest to the Persons in whose names the Registered Securities affected (or their respective Predecessor Securities) are registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest, which shall be fixed in the following manner. The Company shall notify the Trustee in writing of the amount of Defaulted Interest proposed to be paid on each such Registered Security
and the date of the proposed payment. At the same time, the Company shall deposit on or with the Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the proposed payment. When deposited, such money will be held in trust for the benefit of the Persons entitled to such Defaulted Interest as provided in this clause (1). The Company
shall fix a Special Record Date for the payment of 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 providing the Trustee of the notice of the
proposed payment. The Company shall promptly notify the Trustee of such Special Record Date. Unless the Trustee is acting as the Security Registrar, promptly after such Special Record Date, the Company shall furnish the Trustee with a list, or shall
make arrangements satisfactory to the Trustee with respect thereto, of the names and addresses of, and principal amounts of Registered Securities of such series held by, the Holders appearing on the Security Register at the close of business on such
Special Record Date. In the name and at the expense of the Company, the Trustee shall cause notice of the proposed payment of such Defaulted Interest and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
such Registered Securities at his or her 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 such Registered Securities (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).
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(2)
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The Company may make payment of any Defaulted Interest in any other lawful manner not inconsistent with the requirements of any securities exchange on which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the Trustee of the proposed payment pursuant to this clause (2), such payment shall be deemed practicable by the Trustee.
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At the option of the Company, interest on Registered Securities of any series that bear interest may be paid by mailing a check to the address
of the person entitled thereto as such address shall appear in the Security Register.
27
Subject to the foregoing provisions of this Section 307 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.
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 or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests.
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 Registered Security for the purpose of receiving payment of principal of (and premium, if any), and (subject to Sections 305 and 307) interest on
or any Additional Amounts with respect to such Registered Security, and for all other purposes whatsoever, whether or not any payment with respect to such Registered Security be overdue. Neither the Company, the Trustee nor any agent of the Company
or the Trustee shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of transfer, exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee or the Security Registrar, be delivered to the Trustee or the Security Registrar. Any such Securities and Securities surrendered directly to the Trustee or the Security Registrar for any such purpose
shall be promptly cancelled by the Trustee or the Security Registrar, as the case may be. The Company may at any time deliver to the Trustee or the Security Registrar for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever. All Securities so delivered shall be promptly cancelled by the Trustee or the Security Registrar, as the case may be. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly permitted by this Indenture or as otherwise specified as contemplated by Section 301. The Trustee shall dispose of cancelled Securities in accordance with its procedures
for the disposition of cancelled securities in effect as of the date of such disposition, and certification of the disposition of all cancelled Notes shall be delivered to the Company upon cancellation upon request.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for Securities of any series, interest on the Securities of each series shall
be computed on the basis of a
360-day
year of twelve
30-day
months.
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Section 311. CUSIP Numbers.
The Company in issuing the Securities may use “CUSIP” numbers (if then generally in use), and, if so, the Trustee may use
“CUSIP” numbers in notices as a convenience to Holders; provided that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Securities or as contained in any notice and that
reliance may be placed only on the other identification numbers printed on the Securities, and any such notice shall not be affected by any defect in or omission of such numbers. The Company will promptly notify the Trustee of any change in the
“CUSIP” numbers.
ARTICLE IV.
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
Upon the direction of the Company by a Company Order, this Indenture shall cease to be of further effect with respect to any series of
Securities specified in such Company Order (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 1004). The Trustee, on receipt of a Company Order, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture as to such series, when
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(a)
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all Securities of such series theretofore authenticated and delivered (other than (i) Securities of such series which have been destroyed, lost or stolen and which have been replaced or paid as provided in
Section 306; and (ii) Securities of such series for whose payment money has theretofore been deposited in trust or segregated and held in trust by the Company and thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
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(b)
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all Securities of such series that:
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(i)
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have become due and payable; or
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(ii)
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will become due and payable at their Stated Maturity within one year;
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(iii)
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will not become due and payable within one year of the date of the Company’s depositing of funds, as described in the succeeding paragraph, but with the giving of notice of such deposit to the Holders of the
Securities; or
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(iv)
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if redeemable at the option of the Company, such Securities are to be called for redemption within one year under
arrangements
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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 (b)(i), (ii) or
(iii) above, has deposited or caused to be deposited with the Trustee as funds in trust, lawful money of the United States or Government Obligations which, through the payment of interest and principal or other amounts in respect thereof in
accordance with their terms, will provide not later than the opening of business on the due dates of any payment of principal (and premium, if any) and interest, or any Additional Amounts with respect thereto, or a combination thereof, in an amount
sufficient (if a combination involving Government Obligations, in the written opinion of a nationally recognized firm of independent public accounting firm delivered to the Trustee) to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest, or any Additional Amounts with respect thereto, to the date of such deposit (in the case of Securities which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
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(2)
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the Company has paid or caused to be paid all other sums payable hereunder by the Company; and
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(3)
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the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that no Event of Default or event which with notice or lapse of time or both would become an Event of
Default with respect to such Securities shall have occurred and all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding Securities of any such series have been complied
with.
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In the event there are Securities of two or more series 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 all series as to which it is Trustee and if the other conditions thereto are met. In the event there are two or more
Trustees hereunder, then the effectiveness of any such instrument shall be conditioned upon receipt of such instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to the Trustee under Section 606 and, if
money shall have been deposited with 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 such satisfaction and
discharge.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all money deposited with the Trustee pursuant to Section 401 or this
Section 402 shall be held in trust and applied by it, in
30
accordance with the provisions of the Securities and this Indenture, to the payment, either directly or through any Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and premium, if any) and any interest or any Additional Amounts for whose payment such money has been deposited with the Trustee. Such money need not be segregated from other
funds except to the extent required by law.
Section 403. Satisfaction, Discharge and Defeasance of
Securities of Any Series.
If pursuant to Section 301 provision is made for defeasance of Securities of any series pursuant to
this Section 403, the Company shall be deemed to have paid and discharged the entire indebtedness on all the Outstanding Securities of such series and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
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(a)
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with respect to all Outstanding Securities of such series,
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(i)
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the Company has deposited or caused to be deposited with the Trustee, as trust funds in trust for such purpose, an amount sufficient to pay and discharge the entire indebtedness on all Outstanding Securities of such
series for principal (and premium, if any), any Additional Amounts, and interest to the Stated Maturity or any Redemption Date as contemplated by the penultimate paragraph of this Section 403, as the case may be; or
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(ii)
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with respect to any series of Securities which are denominated in United States dollars, the Company has deposited or caused to be deposited with the Trustee, Government Obligations in trust for such purpose, such
amount of direct obligations of, or obligations the timely payment of the principal of and interest on which are fully guaranteed by, the United States of America and which are not callable at the option of the issuer thereof as will, together with
the income to accrue thereon without consideration of any reinvestment thereof, be sufficient, in the written opinion of a nationally recognized firm of independent public accountants delivered to the Trustee, to pay and discharge the entire
indebtedness on all Outstanding Securities of such series for principal (and premium, if any), any Additional Amounts, and interest to the stated Maturity or any Redemption Date as contemplated by the penultimate paragraph of this Section 403;
or
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(b)
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the Company has properly fulfilled such other means of satisfaction and discharge as is specified, as contemplated by Section 301, to be applicable to the Securities of such series; and
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(2)
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the Company has paid or caused to be paid all other sums payable hereunder with respect to the Outstanding Securities of such series; and
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(3)
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the Company has delivered to the Trustee an Officer’s Certificate stating that no Event of Default or event which with notice or lapse of time or both would become an Event of Default with respect to such
Securities shall have occurred and an Officer’s Certificate and an Opinion of Counsel each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the entire indebtedness on all Outstanding
Securities of any such series have been complied with; and
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(4)
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the Company has delivered to the Trustee
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(a)
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a ruling from the Internal Revenue Service or an opinion of independent counsel that the holders of the Securities of such series will not recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal income tax on the same amount and in the same manner and at the same times, as would have been the case if such deposit, defeasance and discharge had not occurred; and
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(b)
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if the Securities of such series are then listed on the New York Stock Exchange, an Opinion of Counsel that the Securities of such series will not be delisted as a result of the exercise of this option.
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Any deposits with the Trustee referred to in subsection (1)(a) of this Section shall be irrevocable and shall be made under
the terms of a trust agreement in form and substance satisfactory to the Trustee. If any Outstanding Securities of such series are to be redeemed prior to their Stated Maturity, whether pursuant to any optional redemption or repayment provisions or
in accordance with any mandatory sinking fund requirement, the Company shall make such arrangements as are satisfactory to the Trustee for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company. The Company
shall pay and indemnify the Trustee against any tax, fee or other charge properly imposed on or assessed against the Trustee with respect to the cash or Government Obligations deposited pursuant to this Article IV or the principal and interest
received in respect thereof other than any such tax, fee or other charge which is held hereunder for the account of the Holders of the outstanding Notes.
Upon the satisfaction of the conditions set forth in this Section 403 with respect to all the Outstanding Securities of any series, the
terms and conditions of such series, including the terms and conditions with respect thereto set forth in this Indenture (other than the provisions of Sections 305, 306, and 1002, and other than the right of Holders of Securities of such series to
receive, from the trust fund described in this Section, payment of the principal (and premium, if any) of the interest on or any Additional Amounts with respect to such Securities when such payments are due, and the rights, powers, duties and
immunities of the Trustee hereunder) shall no longer be binding upon, or applicable to, the Company except those responsibilities and obligations which by the terms of the Indenture survive the termination of the Indenture; provided that the Company
shall not be discharged from any payment obligations in respect of Securities of such series which are deemed not to be Outstanding under clause (iii) of the definition thereof if such obligations continue to be valid obligations of the Company
under applicable law.
32
ARTICLE V.
REMEDIES
Section 501. Event of Default.
“Event of Default,” wherever used herein with respect to Securities of any series, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or be effected by operation of law pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body) unless such
event is either inapplicable to a particular series or is specifically deleted or modified in the applicable Board Resolution or in the supplemental indenture under which such series of Securities is issued, as the case may be, as contemplated
hereby:
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(1)
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default in the payment of any interest upon or any Additional Amounts payable in respect of any Security of such series when such interest becomes or Additional Amounts become due and payable, and such default continues
for a period of 30 days; or
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(2)
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default in the payment of the principal of (and premium and Additional Amounts, if any, and interest on) any Security of that series when it becomes due and payable at Maturity or upon redemption, and such default
continues for a period of 30 days; or
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(3)
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default in the deposit of any sinking fund payment, if any, when and as due by the terms of a Security of that series; or
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(4)
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default in the performance, or breach, of any covenant or warranty of the Company in this Indenture or the Securities (other than a covenant or warranty default in the performance or the breach of which is elsewhere in
this Section specifically dealt with or which has been expressly included in this Indenture solely for the benefit of a series of Securities other than such series), and continuance of such default or breach for a period of 90 days after there has
been given, by registered or certified mail, or overnight courier guaranteeing next day delivery, 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
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(5)
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the entry by a court having jurisdiction in the premises of (A) a decree or order for relief in respect of
the Company or a Principal Subsidiary Bank in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (B) a decree or order adjudging the Company, or any Principal
Subsidiary Bank, bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement, adjustment or
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composition of or in respect of the Company or any Principal Subsidiary Bank under any applicable federal or state law, or appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Principal Subsidiary Bank or of any substantial part of their property, or ordering the winding up or liquidation of their affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of sixty (60) consecutive days; or
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(6)
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the commencement by the Company or any Principal Subsidiary Bank of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of the Company or any Principal Subsidiary Bank in an involuntary case or proceeding under any applicable federal
or state bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it, of a petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the Company or any
Principal Subsidiary Bank, or of any substantial part of their property, or the making by it of an assignment for the benefit of creditors, or the admission by it in writing of its inability to pay their debts generally as they become due, or the
taking of corporate action by the Company or any Principal Subsidiary Bank in furtherance of any such action; or
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(7)
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any other Event of Default provided in the Officers’ Certificate or supplemental indenture under which such series of Securities is issued or in the form of Security for such series.
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If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of any power granted herein, or to enforce any other proper remedy.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default under clauses (5) or (6) of Section 501 hereof with respect to Securities of any series at the time
Outstanding occurs and is continuing, then the Trustee or the Holders of not less than 25% in principal amount of the Outstanding Securities of that series may declare the principal of all the Securities of that series, or such lesser amount as may
be provided for in 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 such lesser amount shall become
immediately due and payable. All outstanding Securities will become due and payable immediately, only upon an Event of Default specified in clauses (5) or (6) of Section 501 hereunder.
34
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 V provided, the Holders of not less than 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
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(1)
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the Company has paid or deposited with the Trustee a sum sufficient to pay
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(a)
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all overdue installments of interest on and any Additional Amounts payable in respect of all Securities of such series;
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(b)
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the principal of (and premium, if any, on) any Securities of such 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;
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(c)
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to the extent that payment of such interest is lawful, interest upon overdue installments of interest or any Additional Amounts at the rate or rates borne by or provided for in such Securities;
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(d)
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all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel as provided in Section 606 hereof; and
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(2)
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all Events of Default with respect to Securities of such series have been cured or waived as provided in Section 512.
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No such rescission shall affect any subsequent default or impair any right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
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(1)
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default is made in the payment of any installment of interest on or any Additional Amounts payable in respect of any Security when such interest or Additional Amounts shall have become due and payable and such default
continues for a period of 30 days; or
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(2)
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default is made in the payment of the principal of, interest (or premium, if any, on) any Security at its Maturity and such default continues for 30 days;
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the Company will, upon demand of the Trustee, pay to it, for the benefit of the Holders of such Securities, the amount then due and payable on such Securities
for principal (and premium, if any), if any, and interest or Additional Amounts, if any, with interest upon the overdue principal (and premium, if any). In addition, the Company shall pay to the Trustee 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.
35
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 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, wherever situated.
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 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 any overdue principal or interest) shall be entitled and empowered, by intervention
in such proceeding or otherwise,
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(1)
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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, if any) and interest and any Additional Amounts 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 or counsel) and of the Holders allowed in such judicial proceeding; and
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(2)
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to collect and receive any moneys or other property payable or deliverable on any such claims and to distribute the same.
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Any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby
authorized by each Holder of Securities to make such payments to the Trustee or, in the event that the Trustee shall consent to the making of such payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel and any other amounts due the Trustee under Section 606. To the extent that the payment of any such compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 606 hereof out of the estate in any such proceeding, shall be denied for any reason, payment of the same shall be secured by a lien on, and
shall be paid out of, any and all distributions, dividends, money, securities and other properties that the Holders may be entitled to receive in such proceeding whether in liquidation or under any plan of reorganization or arrangement or otherwise.
The Trustee may, on behalf of the Holders, vote for the election of a trustee in bankruptcy or similar official and be a member of a creditors’ committee or other similar committee.
36
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 any plan of reorganization, arrangement, adjustment or composition affecting the Securities or the rights of any Holder thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security in any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of
Securities.
All rights of action and claims under this Indenture or any of the Securities may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
or judgment, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, shall be for the ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money or property collected by the Trustee pursuant to this Article, and after an Event of Default, any money or other property
distributable in respect of the Company’s obligations under this Indenture, 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 (and premium,
if any), interest or any Additional Amounts, upon presentation of the Securities and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
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FIRST:
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To the payment of all amounts due the Trustee and any predecessor Trustee under Section 606;
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SECOND:
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To holders of Senior Indebtedness in the manner provided in Article XV;
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THIRD:
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To the payment of the amounts then due and unpaid upon the Securities for principal (and premium, if any) and interest or 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 for principal (and premium, if any), interest or any Additional Amounts, respectively;
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FOURTH:
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The balance, if any, to the Company.
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Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless
37
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(1)
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such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the Securities of such series;
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(2)
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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;
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(3)
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such Holder or Holders have offered security and/or indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request;
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(4)
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the Trustee for 60 days after its receipt of such notice, request and offer of security and/or indemnity has failed to institute any such proceeding; and
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(5)
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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 such series;
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it being understood and intended that these limitations do not apply to a suit instituted by a Holder for the
enforcement of payment of the principal of or any premium and interest on the Security on or after the Maturity thereof and 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 or any Security to affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any other series, or to obtain or to seek to obtain priority or preference over any other 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, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if any) and (subject to Sections 305 and 307) interest on or any Additional Amounts in respect of such Security on the respective Stated Maturity or Maturities specified in such
Security (or, in the case of redemption, on the Redemption Date) and to institute suit for the enforcement of any such payment. Such rights shall not be impaired without the consent of such Holder.
If the Trustee or any Holder of a Security 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 each such Holder 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 each such Holder shall continue as though no such proceeding had been instituted.
38
Section 509. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to be exclusive of any other right or remedy. Every right and remedy, to the extent permitted by
law, shall 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 510. Delay or
Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article V or by law to the Trustee or to any Holder of a Security
may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by such Holder, as the case may be.
Section 511. Control by Holders.
The Holders of 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
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(1)
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such direction shall not be in conflict with any rule of law or with this Indenture;
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(2)
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the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with such direction;
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(3)
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such direction is not unduly prejudicial to the rights of other Holders of Securities of such series (it being understood that the Trustee does not have an affirmative duty to ascertain whether or not any such
directions are unduly prejudicial to such Holders); and
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(4)
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such direction shall not involve the Trustee in personal liability.
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Section 512. 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 waive any past default hereunder with respect to such series and its consequences, except a default
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(1)
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in the payment of the principal of (and premium, if any) or interest on or Additional Amounts payable in respect of any Security of such series; or
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39
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(2)
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in respect of a covenant or provision hereof which under Article IX cannot be modified or amended without the consent of the Holder of each Outstanding Security of such series affected.
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Upon any such waiver, such default shall cease to exist, and any default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture. No such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
Section 513. 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. 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 514. Undertaking for Costs
In any suit for the enforcement of any right or remedy under this Indenture or in any suit against the Trustee for any action taken or omitted
by it as a Trustee, a court in its discretion may require the filing by any party litigant in the suit of an undertaking to pay the costs of the suit, and the court in its discretion may assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in the suit, having due regard to the merits and good faith of the claims or defenses made by the party litigant. This Section 514 does not apply to a suit by the Trustee, a suit by a Holder of a Security
pursuant to Section 508 hereof, or a suit by Holders of more than 10% in principal amount of the then Outstanding Securities of a series.
ARTICLE VI.
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 Section 313(c) of the Trust Indenture Act, notice of such default hereunder known to a Responsible Officer of the Trustee, unless such default shall have been cured or waived. However, except in the case of a
default in the payment of the principal of (or premium, 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 Securities of such series, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the executive committee or a trust committee of directors and/or Responsible Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities of such series; provided, further, that in the case of default of the character specified in Section 501(4) with respect to Securities 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 which is, or after notice or lapse of time or both would become, an Event of Default, with respect to Securities
of such series.
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Section 602. Certain Rights and Obligations of Trustee.
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(a)
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If an Event of Default has occurred and is continuing of which a Responsible Officer of the Trustee has actual notice, the Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the
same degree of care and skill in its exercise, as a prudent person would exercise or use under the circumstances in the conduct of such person’s own affairs.
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(b)
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Except during the continuance of an Event of Default:
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(i)
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the duties of the Trustee shall be determined solely by the express provisions of this Indenture and the Trustee need perform only those duties that are specifically set forth in this Indenture and no others, and no
implied covenants or obligations shall be read into this Indenture against the Trustee; and
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(ii)
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in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture. However, the Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture (but need not confirm or investigate the accuracy
of any mathematical calculations or other facts stated therein).
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(c)
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The Trustee may not be relieved from liabilities for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:
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(i)
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this paragraph does not limit the effect of paragraph (b) of this Section 602;
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(ii)
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the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer, unless it is proved that the Trustee was negligent in ascertaining the pertinent facts; and
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(iii)
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the Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to Sections 102, 104, and 511.
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(d)
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Whether or not therein expressly so provided, every provision of this Indenture that in any way relates to the Trustee is subject to paragraphs (a), (b) and (c) of this Section 602.
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(e)
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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 has reasonable grounds for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. The Trustee shall not be required to give any bond or surety in
respect of the performance of its powers or duties hereunder.
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(f)
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Subject to the provisions of Sections 315(a) through 315(d) of the Trust Indenture Act:
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(i)
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the Trustee may conclusively rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, or other paper or document (whether in its original, facsimile or electronic form) reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
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(ii)
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any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company Request or a Company Order or an Officer’s Certificate (other than delivery of any Security to the Trustee for
authentication and delivery pursuant to Section 303 which shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced by a Board Resolution or Board Resolutions;
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(iii)
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whenever in the administration of this Indenture, the Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on its part, require and rely upon an Officer’s Certificate or an Opinion of Counsel or both, and the Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance thereon;
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(iv)
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the Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
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(v)
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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 pursuant to this Indenture,
unless such Holders shall have offered to the Trustee security and/or indemnity satisfactory to it against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction;
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(vi)
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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 or other paper or document, and shall have no duty to inquire as to the performance by the Company of any of its covenants in the Indenture, but the Trustee, in its discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Company, personally or by agent or attorney at the sole cost of
the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation;
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(vii)
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the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it hereunder;
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(viii)
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the Trustee shall not be liable for any action taken, suffered, omitted to be taken 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;
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(ix)
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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 from the Company or Holders of 25% in
aggregate principal amount of the Securities of a series of any event which is in fact such a default is received by a Responsible Officer of the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities, the
Company and this Indenture;
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(x)
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the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be compensated, reimbursed, and 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;
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(xi)
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in no event shall the Trustee be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including,
without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer
(software and hardware) services, or other unavailability of the Federal Reserve’s Fedwire Services; it being understood that the Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to
resume performance as soon as practicable under the circumstances;
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(xii)
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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 furnish the Trustee with directions relating to any other matter
requiring direction from the Company pursuant to this Indenture;
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(xiii)
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in no event shall the Trustee be responsible or liable for any special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit), irrespective of whether
the Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and
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(xiv)
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the permissive right of the Trustee to do things enumerated in this Indenture shall not be construed as a duty of the Trustee.
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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 the information in any
prospectus or prospectus supplement, including all attachments thereto, except information provided directly by the Trustee therein, shall be taken as the statements of the Company and neither the Trustee nor any Authenticating Agent assumes
responsibility for their correctness. The Trustee makes no representations as to the validity or sufficiency of this Indenture or of the Securities and shall not be responsible for any statement in any document in connection with the sale of any
series of Securities. Under no circumstances shall the Trustee be liable in its individual capacity for the obligations evidenced by the Securities.
The Trustee represents that it is duly authorized to execute and deliver this Indenture, authenticate the Securities and perform its
obligations hereunder and that the statements made by it in a Statement of Eligibility on Form
T-1
supplied to the Company are true and accurate at the date of execution, subject to the qualifications set
forth therein. The Trustee or any Authenticating Agent shall not be accountable for the use or application by the Company of Securities or the proceeds thereof or any funds paid to the Company pursuant to its direction in accordance with this
Indenture.
Section 604. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or pledgee of Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal with the Company with the same rights it would have if it were not
Trustee, Authenticating Agent, Paying Agent, Security Registrar or such other Person.
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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 and shall be held
uninvested.
The Trustee and any Paying Agent shall be under no liability for interest on any money received by it hereunder, except as
otherwise agreed by it in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees
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(1)
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to pay to the Trustee from time to time such compensation for all services rendered by it hereunder as shall be mutually agreed upon by the Company and the Trustee in writing (which compensation shall not be limited by
any provision of law in regard to the compensation of a trustee of an express trust);
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(2)
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to reimburse the Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the reasonable expenses and disbursements of its agents and counsel), except any such expense, disbursement or advance as may be attributable to its gross negligence or willful misconduct; and
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(3)
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to indemnify each of the Trustee and any predecessor Trustee and its officers, directors, employees and agents for, and to hold them harmless against, any liability, claim, damage or expense including reasonable counsel
fees and expenses and taxes (other than taxes based upon, measured by or determined by the income of the Trustee) incurred without gross negligence or willful misconduct on their part (as finally adjudicated by a court of competent jurisdiction),
arising out of or in connection with the acceptance or administration of the trust or trusts hereunder, including the costs and expenses of defending themselves against any claim or liability in connection with the exercise or performance of any of
their powers or duties hereunder.
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The Trustee shall notify the Company promptly of any third-party claim for
which it may seek indemnity of which it has received written notice. Failure by the Trustee to so notify the Company shall not relieve the Company of its obligations hereunder unless, and solely to the extent that, such failure materially prejudices
the Company’s defense of such claim. The Company shall defend the claim, with counsel reasonably satisfactory to the Trustee, and the Trustee shall provide reasonable cooperation at the Company’s expense in the defense; provided that if
the defendants in any such claim include both the Company and the Trustee and the Trustee shall have concluded that there may be legal defenses available to it which are different from or additional to those available to the Company, or the Trustee
has concluded that there may be any other actual or potential conflicting interests between the Company and the Trustee, the Trustee shall have the right to select separate counsel and the Company shall be required to pay the reasonable fees and
expenses of such separate counsel. Any settlement which affects the Trustee
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may not be entered into without the written consent of the Trustee, unless the Trustee is given a full and unconditional release from liability with respect to the claims covered thereby and such
settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Trustee. Any settlement by the Trustee which affects the Company may not be entered into without the written consent of the Company,
unless such settlement does not include a statement or admission of fault, culpability or failure to act by or on behalf of the Company.
As security for the performance of the obligations of the Company under this Section, the Trustee shall have a lien prior to the Securities of
any series 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, if any) or interest on Securities. When the Trustee incurs expenses or renders services after an
Event of Default occurs, the expenses and compensation for the services of the Trustee are intended to constitute expenses of administration under any bankruptcy law or any similar federal or state law for the relief of debtors.
The provisions of this Section 606 shall survive the termination of this Indenture and the resignation or removal of the Trustee.
“Trustee” for the purposes of this Section 606 shall include any predecessor Trustee and the Trustee in each of its capacities hereunder and each agent, custodian and other person employed to act hereunder; provided, however, that the
negligence or willful misconduct of any Trustee hereunder shall not affect the rights of any other Trustee hereunder.
Section 607. Corporate Trustee Required; Eligibility; Conflicting Interests.
There shall at all times be a Trustee hereunder that is a corporation permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to
act as trustee under the Trust Indenture Act and that has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000. 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. If the Trustee has or shall acquire any conflicting interest, as defined in Section 310(b) of the
Trust Indenture Act, with respect to the Securities of any series, the Trustee shall take such action as is required pursuant to said Section 310(b). There shall be excluded from the operation of Trust Indenture Act Section 310(b)(i) any series of
Securities and any indenture or indentures under which other securities or certificates of interest or participation in other securities of the Company are outstanding if the requirements for such exclusion set forth in Trust Indenture Act Section
310(b)(i) are met.
Section 608. Resignation and Removal; Appointment of Successor.
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(1)
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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 pursuant to
Section 609.
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(2)
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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 the instrument of acceptance by a successor Trustee required by Section 609 shall not have been
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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 with respect to such series.
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(3)
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The Trustee may be removed at any time with respect to the Securities of any series by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series, delivered to the Trustee and 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 removal, the Trustee being removed may petition, at the expense of the Company, any court
of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(a)
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the Trustee shall fail to comply with the obligations imposed upon it under Section 310(b) of the Trust Indenture Act 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
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(b)
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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 such Holder of a Security; or
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(c)
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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;
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then, in any such case,
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(i)
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the Company, by or pursuant to a Board Resolution, may remove the Trustee with respect to all Securities, or
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(ii)
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subject to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide Holder of a Security of any series for at least six months may, on behalf of such Holder and all others similarly
situated, petition any court of competent jurisdiction for the removal of the Trustee with respect to all Securities of such series and the appointment of a successor Trustee or Trustees.
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(5)
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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 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
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Securities of one or more or all of such series and that at any time there shall be only one Trustee with respect to the Securities of any particular series) and shall comply with the applicable
requirements of Section 609. If, within one year after such resignation, removal or incapability, or the occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Securities of such series delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, 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 required by Section 609, 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 such Holder and all others similarly situated, petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.
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(6)
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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 by
mailing written notice of such event by first-class mail, postage prepaid, to the Holders of Registered Securities, if any, of such series as their names and addresses appear in the Security Register.
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Section 609. Acceptance of Appointment by Successor.
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(1)
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In case of the appointment hereunder of a successor Trustee with respect to all Securities, every such successor Trustee so appointed shall execute, acknowledge and deliver to the Company and the 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. On the written request of the Company and/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.
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(2)
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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 wherein each successor Trustee shall accept such appointment and which
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(a)
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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;
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(b)
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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
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(c)
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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.
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Nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees
of the
same trust, 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 that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee hereunder, 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, such retiring Trustee shall with respect to the Securities of that or those series to which the appointment of such successor Trustee relates have no further responsibility for the exercise of rights and powers or for the performance of the
duties and obligations vested in the Trustee under this Indenture other than as hereinafter expressly set forth, and each such successor Trustee without any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the appointment of such successor Trustee relates; but, on the written request of the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee, to the extent contemplated by such supplemental indenture, the 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.
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(3)
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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 (1) or (2) of this Section, as the case may be.
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(4)
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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.
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Section 610. Merger, Conversion, Consolidation or Succession to
Business.
Without the execution or filing of any paper or any further act on the part of any of the parties hereto:
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(1)
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any corporation into which the Trustee may be merged or converted or with which it may be consolidated; or
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(2)
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any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party; or
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(3)
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any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder, provided that such corporation shall be 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 shall have been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee may adopt such authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated such Securities.
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Section 611. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Authenticating Agents, which may be an Affiliate of the Company, with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee to authenticate Securities of that or those series issued upon original issue or exchange, registration of transfer or partial redemption or pursuant to Section 306.
Securities so authenticated shall be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except as
specified as contemplated by Section 301, shall at all times
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(1)
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be a corporation that would be permitted by Section 310(a)(1) and (5) of the Trust Indenture Act to be able to act as a trustee under an indenture qualified under the Trust Indenture Act;
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(2)
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be authorized under applicable law and by its charter to act as such; and
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(3)
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have a combined capital and surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture Act) of not less than $50,000,000.
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If 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
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with the effect specified in this Section. If the Authenticating Agent has or shall acquire any conflicting interest, as defined in Section 310(b) of the Trust Indenture Act, with respect to the
Securities of any series, the Authenticating Agent shall take such action as is required pursuant to said Section 310(b).
Without the
execution or filing of any paper or any further act on the part of the Trustee or the Authenticating Agent,
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(1)
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any corporation into which an Authenticating Agent may be merged or converted or with which it may be consolidated; or
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(2)
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any corporation resulting from any merger, conversion or consolidation to which such Authenticating Agent shall be a party; or
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(3)
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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 any further act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice thereof to the Trustee and the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof to such Authenticating Agent and 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 may appoint a successor Authenticating Agent which shall be acceptable to the Company. At such time, the Trustee shall also mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Registered Securities, if any, of the series with respect to which such Authenticating Agent will serve, as their names and addresses appear in the Security Register.
Any successor Authenticating Agent upon acceptance of its appointment hereunder shall become vested with all the rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee makes such payments, it shall be entitled to be reimbursed for such payments, subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each Authenticating Agent.
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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 in the following form:
This is one of the Securities of the series designated herein referred to in the within-mentioned Indenture.
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Dated:
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U.S. BANK NATIONAL ASSOCIATION,
as Trustee
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By:
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As Authenticating Agent
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By:
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Authorized Signatory
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If all of the Securities of any series may not be originally issued at one time, and if the Trustee does not
have an office capable of authenticating Securities upon original issuance located in a Place of Payment where the Company wishes to have Securities of such series authenticated upon original issuance, the Trustee, if so requested in writing (which
writing need not comply with Section 102) by the Company, shall appoint in accordance with this Section an Authenticating Agent having an office in a Place of Payment designated by the Company with respect to such series of Securities.
Section 612. Preferential Collection of Claims Against Company.
The Trustee is subject to Trust Indenture Act Section 311(a), excluding any creditor relationship listed in Trust Indenture Act Section 311(b).
A Trustee who has resigned or been removed shall be subject to Trust Indenture Act Section 311(a) to the extent indicated therein.
ARTICLE VII.
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the Company will furnish or cause to be furnished to the Trustee
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(1)
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semi-annually, not later than 15 days after the Regular Record Date for interest for each 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
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(2)
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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 list shall be required to be furnished.
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Section 702. Preservation of Information; Communications to
Holders.
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(1)
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The Trustee shall comply with the obligations imposed upon it pursuant to Section 312(b) of the Trust Indenture Act.
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(2)
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Every Holder of Securities, by receiving and holding the same, agrees with the Company and the Trustee that neither the Company nor the Trustee nor any Paying Agent nor any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and addresses of the Holders of Securities in accordance with Section 312 of the Trust Indenture Act, 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 Section 312(b) of the Trust Indenture Act.
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Section 703. Reports by Trustee.
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(1)
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Within 60 days after August 15 of each year commencing with the year following the first issuance of Securities pursuant to Section 301, if required by Section 313(a) of the Trust Indenture Act, the Trustee
shall transmit pursuant to Section 313(c) of the Trust Indenture Act a brief report dated as of such August 15 with respect to any of the events specified in said Section 313(a) which may have occurred since the later of the immediately
preceding August 15 and the date of this Indenture. The Trustee shall comply with Trust Indenture Act Section 313(b) to the extent applicable.
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(2)
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The Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
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(3)
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Reports pursuant to this Section shall be transmitted in the manner and to the Persons required by Sections 313(c) and (d) of the Trust Indenture Act.
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Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act, shall:
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(1)
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file with the Trustee, within 15 days after the Company is required to file 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) which the Company may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
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(2)
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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 respect to compliance by such obligor with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
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(3)
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transmit to Holders within 30 days after the filing thereof with the Trustee, in the manner and to the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from time to time by the Commission.
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Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute 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 Officer’s Certificates or statements delivered pursuant to Section 1005).
ARTICLE VIII.
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive consolidations or mergers in which the Company or its successor or successors shall be a party or parties, or shall prevent any conveyance, transfer or lease of the
property of the Company as an entirety or substantially as an entirety, to any other Person (whether or not affiliated with the Company). However,
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(1)
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in case the Company shall consolidate with or merge into another Person or convey, transfer or lease its properties and assets substantially as an entirety to any Person, the entity formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or transfer, or which leases, the properties and assets of the Company substantially as an entirety shall be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and shall expressly assume, by an indenture (or indentures, if at such time there is more than one Trustee) supplemental hereto, executed and delivered by the successor Person to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal of (and premium, if any) and interest on or any Additional Amounts in respect of all the Securities and the performance of every other covenant of this
Indenture on the part of the Company to be performed or observed;
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(2)
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immediately after giving effect to such transaction and treating any indebtedness which becomes an obligation of the Company or a Subsidiary as a result of such transaction as having been incurred by the Company or such
Subsidiary at the time of such transaction, no default, and no event which, after notice or lapse of time or both, would become a default or Event of Default, shall have happened and be continuing; and
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(3)
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each of the Company and the successor Person has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article VIII and that all conditions precedent herein provided for relating to such transaction have been complied with, and each document and instrument delivered by the Company and each successor Person
pursuant to this Section 801 constitutes the legal, valid and binding obligation of the Company and the successor Person.
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Section 802. Successor Corporation Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease of the properties and assets of the Company substantially as an entirety
to any Person in accordance with Section 801, the successor Person formed by such consolidation or into which the Company is merged or to which such conveyance, transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the same effect as if such successor Person had been named as the Company herein, and thereafter, except in the case of a lease to another Person, the predecessor Person shall
be relieved of all obligations and covenants under this Indenture and the Securities.
ARTICLE IX.
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders of Securities, the Company, when authorized by Board Resolutions, 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:
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(1)
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to evidence the succession of another Person to the Company, and the assumption by any such successor of the covenants and obligations of the Company herein and in the Securities contained;
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(2)
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to evidence and provide for the acceptance of appointment by another Person as a successor Trustee hereunder with respect to one or more series of Securities and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Trustee, pursuant to the requirements of Section 609(2);
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(3)
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to add to the covenants and agreements of the Company for the benefit of the Holders of all or any series of Securities (if such covenants are for less than all series, stating that such covenants are for the benefit of
such series), or to surrender any right or power herein conferred upon the Company, provided that such action shall not adversely affect the interests of the Holders of Outstanding Securities;
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55
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(4)
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to add or eliminate Events of Default of any series of Securities, provided that such change or elimination shall not apply to any Outstanding Securities of any series;
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(5)
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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, provided such other provisions shall not adversely affect the interests of the Holders of Outstanding Securities in any material respect;
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(6)
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to secure the Securities or add obligors;
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(7)
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to establish any form or terms of Securities of any series as permitted by Sections 201 and 301, and to provide for the issuance of any series of Securities as permitted by Section 301, and to set forth the terms
thereof;
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(8)
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to provide for the issuance of uncertificated Securities of one or more series in the place of certificated Securities;
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(9)
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to qualify or maintain qualification of the Indenture under the Trust Indenture Act; or
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(10)
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to comply with the rules and regulations of any securities exchange or automated quotation system on which any of the Securities may be listed or traded.
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Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the Trustee, the Company, when authorized by Board Resolutions, and the Trustee may enter into an indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the Holders of Securities of such series under this Indenture. However, no such supplemental Indenture,
without the consent of the Holder of each Outstanding Security affected thereby, shall
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(1)
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change the Maturity of the principal of, or the Stated Maturity of, or any installment of interest on, any Security, or reduce the principal amount thereof (including in the case of an Original Issue Discount Security
the amount payable upon acceleration of the Maturity thereof) or any premium thereon or the rate of interest thereon, or change the method of computing the amount of principal thereof on any date, or change a Place of Payment where, or the coin or
currency in which, any Security or any premium thereon or the interest thereon is payable, or impair the right to institute suit for the enforcement of any such payment on or after the Maturity or the Stated Maturity, as the case may be, thereof
(or, in the case of redemption or a repayment, on or after the Redemption Date or the Repayment Date, as the case may be);
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(2)
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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 (of compliance with certain provisions of this Indenture or certain Defaults hereunder and their consequences) provided for in this Indenture;
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(3)
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modify any of the provisions of this Section, or Sections 508, 511, 512 or Section 1008, except to increase any such percentage 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;
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(4)
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modify any of the provisions of this Indenture with respect to the subordination of any Security in a manner adverse to the capital treatment of the Securities, except to clarify ambiguities or to meet regulatory
requirements for the Securities to qualify as Tier 2 capital or the equivalent for bank regulatory purposes; or
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(5)
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modify or affect in any manner adverse to the Holders of the Securities the terms and conditions of the obligation of the Company in respect of the due and punctual payment of the principal of or premium or interest on
the Securities.
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The Company may, but shall not be obligated to, fix a record date for the purpose of determining the
Persons entitled to consent to any indenture supplemental hereto. If a record date is fixed, the Holders on such record date, or their duly designated proxies, and only such Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date; provided, that unless such consent shall have become effective by virtue of the requisite percentage having been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further action by any Holder be cancelled and of no further effect.
A
supplemental indenture which changes or eliminates any covenant or other provision of this Indenture which has expressly been included solely for the benefit of one or more particular series of Securities, or which modifies the rights of the Holders
of Securities of such series with respect to such covenant or other provision, shall be deemed not to affect the rights under this Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders of Securities 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.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created by, any supplemental indenture permitted by this Article or the
modifications thereby of the trust created by this Indenture, the Trustee shall be entitled to receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully protected in relying upon, a Company Request, accompanied by a
57
Board Resolution, and, if and to the extent applicable, upon the filing with the Trustee of evidence of the consent of Holders of Securities, an Officer’s Certificate and an Opinion of
Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture, and an Opinion of Counsel stating that the supplemental indenture is the legal, valid and binding obligation of the Company.
The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which 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 IX, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes. Every Holder of a Security theretofore or thereafter authenticated and delivered hereunder shall be bound by such supplemental indenture.
Section 905. Conformity With Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article IX shall conform to the requirements of the Trust Indenture Act 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 IX 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. Subordination Unimpaired.
No supplemental indenture entered into under this Article IX shall modify, directly or indirectly, the provisions of Article XV or the
definition of Senior Indebtedness in Section 101 in any manner that might alter or impair the subordination of the Securities with respect to Senior Indebtedness then outstanding, unless each holder of such Senior Indebtedness has consented
thereto in writing.
ARTICLE X.
COVENANTS
Section 1001. Payment of Principal, Premium, if Any, and Interest.
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, if any), interest on or any Additional Amounts payable in respect of the Securities of that series in accordance with
58
the terms of such series of Securities and this Indenture. Principal, premium, if any, and interest or Additional Amounts shall be considered paid on the date due if the Paying Agent, if other
than the Company or one of its Subsidiaries, holds as of 12:00 noon Eastern Time on the due date money deposited by the Company in immediately available funds and designated for and sufficient to pay all such amounts then due; provided, however,
that to the extent any such funds are received by the Paying Agent from the Company after 12:00 noon Eastern Time, on such due date, such funds will be distributed to such Persons within one Business Day of receipt thereof.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of Securities an office or agency where Securities of such series may be
presented or surrendered for payment,
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(1)
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where Securities of that series may be surrendered for registration of transfer or exchange; and
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(2)
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where notices and demands to or upon the Company in respect of the Securities of that series and this Indenture may be served.
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If the Securities of such series are listed on the Stock Exchange of the United Kingdom and the Republic of Ireland or the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such stock exchange shall so require, the Company shall maintain a Paying Agent in London, Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of such series are listed on such exchange. The Company will give prompt written notice to the Trustee of the location, and any change in the location, of such office or agency. If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices and demands may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all such purposes and may from time to time rescind such designations. However, no such designation or rescission shall in any manner relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee of any such designation or rescission and of any change in the location of any such other office or agency.
Unless otherwise specified as contemplated by Section 301, the Company hereby designates as the Place of Payment for each series the
Corporate Trust Office of the Trustee. Pursuant to Section 301(8) of this Indenture, the Company may subsequently appoint a place or places other than the Corporate Trust Office of the Trustee where such Securities may be payable.
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 Securities, it will, on or before each due date of
the principal of (and premium, if any), or interest
59
on, any of the Securities of that series, segregate and hold in trust for the benefit of the Person entitled thereto a sum sufficient to pay the principal (and premium, if any) or interest so
becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities, it will, on or prior to each due date of the principal
of (and premium, if any), or interest on, any Securities of that series, deposit with any Paying Agent a sum sufficient to pay the principal (and premium, if any) or interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities other than the Trustee to execute and deliver to the Trustee an
instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions of this Section, that such Paying Agent will:
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(1)
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hold all sums held by it for the payment of the principal of (and premium, if any) or interest on Securities of that series 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;
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(2)
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give the Trustee notice of any default by the Company (or any other obligor upon the Securities of that series) in the making of any payment of principal (and premium, if any) or interest on the Securities of that
series; and
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(3)
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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.
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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 terms as those upon which such sums were held by the Company or such Paying
Agent. Upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all further liability with respect to such money.
Except as otherwise provided hereby or pursuant hereto, or as may be required by applicable abandoned property law, any money deposited with
the Trustee or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and premium, if any) or interest and Additional Amounts on any Security of any series and remaining unclaimed for two years after such
principal (and premium, if any) or interest has become due and payable shall be paid to the Company on Company Request, or (if then held by the Company) shall be discharged from such trust. The Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee
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thereof, shall thereupon cease. However, 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 in each Place of Payment for such series or to be mailed to Holders of Registered Securities for such series, or both, 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 or mailing nor shall it be later than two years after such principal (and premium, if any) or interest has become due and payable, any unclaimed balance of such money then remaining will be repaid to
the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional Amounts, the Company agrees to pay to the Holder of any such Security of
any such series the Additional Amounts as provided therein. Whenever in this Indenture there is mentioned, in any context, the payment of the principal of (or premium, if any) or interest on, or in respect of, any Security of any series or the net
proceeds received on the sale or exchange of any Security of any series, such mention shall be deemed to include mention of the payment of Additional Amounts provided by the terms of such series established hereby or pursuant hereto to the extent
that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to such terms and express mention of the payment of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made. Except as otherwise provided herein or pursuant hereto, 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 such series of Securities (or if the Securities of that series shall not bear interest prior to Maturity, the first day on which a payment of principal and any premium is made), and at least 10 days prior
to each date of payment of principal and any premium, or interest if there has been any change with respect to the matters set forth in the below-mentioned Officer’s Certificate, the Company will furnish the Trustee and the principal Paying
Agent or Paying Agents, if other than the Trustee, an Officer’s Certificate instructing the Trustee and such Paying Agent or Paying Agents whether such payment of principal (and premium, if any) of or interest on the Securities of that series
shall be made to Holders. In connection with any Holders who are United States Aliens and who are Holders of Securities of a series without withholding for or on account of any tax, assessment or other governmental charge described in the Securities
of that series, if any such withholding shall be required, then such Officer’s Certificate shall specify by country the amount, if any, required to be withheld on such payments to such Holders of Securities. The Company agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by this Section with respect to an applicable series, if any. The Company covenants to indemnify the Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without gross negligence or willful misconduct on their part arising out of or in connection with actions taken or omitted by any of them in reliance on any Officer’s Certificate furnished pursuant to
this Section. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such an Officer’s Certificate, the Trustee may assume without inquiry that no such Additional Amounts are payable. The Trustee shall not
at any time be under any duty or responsibility to any Holder to determine whether any Additional Amounts are payable, or with respect to the nature, extent, or calculation of the amount of any Additional Amounts owed, or with respect to the method
employed in such calculation of any Additional Amounts. If the Company has paid Additional Amounts directly to the Persons entitled to it, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such
payment.
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Section 1005. Statement as to Compliance; Notice of Certain
Defaults.
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(1)
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The Company will deliver to the Trustee, within 120 days after the end of each fiscal year (which on the date hereof ends on December 31), commencing December 31, 2017, a written statement, which need not comply
with Section 102, signed by the principal executive officer, the principal financial officer or the principal accounting officer of the Company, stating that
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(a)
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a review of the activities of the Company during such year and of performance under this Indenture has been made under such officer’s supervision; and
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(b)
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to such officer’s knowledge, based on such review,
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(i)
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the Company has fulfilled all of its obligations under this Indenture throughout such year, or, if there has been a default in the fulfillment of any such obligation, specifying each such default known to such officer
and the nature and status thereof; and
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(ii)
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no event has occurred and is continuing which is, or after notice or lapse of time or both would become, a default or an Event of Default, or, if such an event has occurred and is continuing, specifying each such event
known to such officer and the nature and status thereof.
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(2)
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The Company will deliver to the Trustee as soon as possible, and in any event, within five days after the occurrence thereof, written notice of any event which after notice or lapse of time or both would become an Event
of Default.
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Section 1006. 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,
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(1)
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all taxes, assessments and governmental charges levied or imposed upon the Company or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary; and
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(2)
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all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien upon the property of the Company or any Subsidiary. However, the Company shall not be required to pay or discharge or
cause to be paid or discharged any such tax, assessment, charge or claim whose amount, applicability or validity is being contested in good faith by appropriate proceedings.
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Section 1007. Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all things necessary to preserve and keep in full force and effect its
corporate existence, rights (charter and statutory) and franchises and the corporate existence, rights (charter and statutory) and franchises of each Principal Subsidiary Bank; provided, however, that the Company shall not be required to preserve
any such corporate existence, 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 considered as a whole and that the loss thereof
is not disadvantageous in any material respect to the Holders.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision or condition set forth in Section 1005 and
1006 with respect to the Securities of any series if before the time for such compliance the Holders of at least a majority in principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either waive such compliance
in such instance or generally waive compliance with such term, provision or condition, but no such waiver shall extend to or affect such term, provision or condition except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in respect of any such term, provision or condition shall remain in full force and effect.
Section 1009. Calculations; Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each calendar year for which reporting on Form 1099 OID is required (i) a
written notice specifying the amount of original issue discount (including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as amended from time to time.
The Company shall be responsible
for making calculations called for under the Securities, including but not limited to determination of redemption price, premium, if any, and any additional amounts or other amounts payable on the Securities. The Company will make the calculations
in good faith and, absent manifest error, its calculations will be final and binding on the Holders. The Company will provide a schedule of its calculations to the Trustee when requested by the Trustee, and the Trustee is entitled to rely
conclusively on the accuracy of the Company’s calculations without independent verification.
ARTICLE XI.
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided herein or pursuant hereto) this Article XI.
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Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced by Board Resolution. In case of any redemption at the election of the
Company of the Securities of any series with the same issue date, interest rate and Stated Maturity, the Company shall, at least 30 days prior to the Redemption Date fixed by the Company, deliver an Officer’s Certificate to the Trustee stating
(i) the clause of this Indenture pursuant to which the redemption shall occur, (ii) the Redemption Date, (iii) the principal amount of Securities to be redeemed, (iv) the Redemption Price (or manner of calculation if not then
known), (v) such election has been duly authorized by all requisite corporate action on the part of the Company, and (vi) complies with any applicable covenants or conditions precedent set forth in this Indenture. Any redemption may be
cancelled by the Company at any time prior to notice of redemption being sent to any Holder and thereafter shall be null and void.
Section 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series with the same issue date, interest rate, Stated Maturity and other 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 not previously called for redemption, subject to Applicable Procedures, by such
method as the Trustee shall deem fair and appropriate or otherwise in accordance with the procedures of the Depository and which may provide for the selection for redemption of portions of the principal amount of Registered Securities of such
series. However, no such partial redemption shall reduce the portion of the principal amount of a Registered Security of such series not redeemed to less than the minimum denomination for a Security of such series established herein pursuant hereto.
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 Securities redeemed or to be redeemed only in part, to the portion of the principal of such
Securities which 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 nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities to be redeemed. Failure to give notice by mailing or sending in the manner herein provided to the Holder of any Registered Securities
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 Securities or portion thereof.
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Any notice that is mailed to the Holder of any Registered Securities or sent to a Depository
pursuant to Applicable Procedures in the manner herein provided shall be conclusively presumed to have been duly given, whether or not such Holder receives the notice.
All notices of redemption shall state:
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(2)
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the Redemption Price (or manner of calculation if not then known);
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(3)
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the CUSIP number, if any, provided that no representation is made as to the correctness or accuracy of the CUSIP number, if any, listed in such notice or printed on the Securities;
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(4)
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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 Securities to be redeemed;
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(5)
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in case any Registered Security is to be redeemed in part only, the notice which relates to such Security shall state that on and after the Redemption Date, upon surrender of such Security, the Holder of such Security
will receive, without charge, a new Registered Security or Registered Securities of authorized denominations for the principal amount thereof remaining unredeemed;
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(6)
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that on the Redemption Date the Redemption Price will become due and payable upon each such Security to be redeemed only against tender of such Security and, unless the Company shall default in the payment of the
Redemption Price and accrued interest, that interest and Additional Amounts, if any, thereon shall cease to accrue on and after said date;
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(7)
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the place or places where such Securities, if any, maturing after the Redemption Date, are to be surrendered for payment of the Redemption Price; and
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(8)
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that the redemption is for a sinking fund, if such is the case.
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A notice of redemption given
as contemplated by Section 106 need not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities
to be redeemed at the election of the Company shall be given by the Company. At the Company’s written request, the Trustee shall give the notice of redemption in the Company’s name and at its expense; provided, however, that the Company
shall have delivered to the Trustee, at least 45 days prior to the Redemption Date (unless a shorter period shall be satisfactory to the Trustee), an Officer’s Certificate requesting that the Trustee give such notice and setting forth the
notice to be given as an exhibit thereto containing the information to be stated in such notice as provided in the preceding paragraph.
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Section 1105. Deposit of Redemption Price.
On or prior to 12:00 noon Eastern Time 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, segregate and hold in trust as provided in Section 1003) an amount of money sufficient to pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on and any Additional Amounts with respect thereto, all the Securities or portions thereof which are to be redeemed on that date; provided, however, that to the extent any such funds are received by the Paying Agent from the Company after
12:00 noon Eastern Time, on such due date, such funds will be distributed to such Persons within one Business Day of receipt thereof.
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, and from and after such date (unless the Company shall default in the payment of the Redemption Price and accrued interest) such Securities shall cease to bear interest, except to the extent provided below,
shall be void. Upon surrender of any such Security for redemption in accordance with said notice, maturing after the Redemption Date, such Security shall be paid by the Company at the Redemption Price, together with accrued interest (or any
Additional Amounts) to the Redemption Date. However, 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 Regular Record Dates according to their terms and the provisions of Section 307. If any Security called for redemption shall not be so paid upon surrender thereof for redemption,
the principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the rate prescribed therefor in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be surrendered at any office or agency of the Company maintained for that
purpose pursuant to Section 1002 (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 or her
attorney duly authorized in writing). The Company shall execute and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new Registered Security or Securities of the
same series, containing identical terms and provisions, 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. If
a Security in global form is so surrendered, the schedule to such global Security shall be adjusted as provided in Section 203, or the Company shall execute, and upon receipt of a Company Order, the Trustee shall authenticate and deliver to the
Depository or other depository for such Security in global form as shall be specified in the Company Order with respect thereto to the Trustee, without service charge, a new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so surrendered.
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ARTICLE XII.
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article XII shall be applicable to any sinking fund for the retirement of Securities of a series, except as otherwise
permitted or required by any form of Security of such series issued pursuant to this Indenture.
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 Securities of such series is herein
referred to as an “optional sinking fund payment.” If provided for by the terms of Securities of any series, the cash amount of any 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 sinking fund payment with respect to the Securities of such series to be made
pursuant to the terms of such Securities as provided for by the terms of such series
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(1)
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deliver Outstanding Securities of such series (other than any of such Securities previously called for redemption or any of such Securities in respect of which cash shall have been released to the Company); and
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(2)
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apply as a credit Securities of such series which have been redeemed either at the election of the Company pursuant to the terms of such series of Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, provided that such series of Securities have not been previously so credited.
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Such Securities shall be received and credited for such purpose by the Trustee at the Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such sinking fund payment shall be reduced accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash payments pursuant to this
Section 1202, the principal amount of Securities of such series to be redeemed in order to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking fund payment. However, the Trustee or such Paying Agent shall at the request of the Company from time to time pay over and
deliver to the Company any cash payment so being held by the Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that series purchased by the Company having an unpaid principal amount equal to the cash payment
requested to be released to the Company.
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Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any series of Securities, the Company will deliver to the Trustee an
Officer’s 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 and the portion
thereof, if any, which is to be satisfied by delivering and crediting of Securities of that series pursuant to Section 1202, and the optional amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment. The Company
will also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If such Officer’s 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 60 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 XIII.
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the Holders thereof before their Stated Maturity shall be repaid in accordance
with the terms of the Securities of such series. The repayment of any principal amount of Securities pursuant to such option of the Holder to require repayment of Securities before their Stated Maturity, for purposes of Section 309, shall not
operate as a payment, redemption or satisfaction of the indebtedness represented by such Securities unless and until the Company, at its option, shall deliver or surrender the same to the Trustee with a directive that such Securities be cancelled.
Notwithstanding anything to the contrary contained in this Article XIII, in connection with any repayment of Securities, the Company may arrange for the purchase of any Securities by an agreement with one or more investment bankers or other
purchasers to purchase such Securities by paying to the Holders of such Securities on or before the close of business on the repayment date an amount not less than the repayment price payable by the Company on repayment of such Securities, and the
obligation of the Company to pay the repayment price of such Securities shall be satisfied and discharged to the extent such payment is so paid by such purchasers.
ARTICLE XIV.
MEETINGS
OF HOLDERS
Section 1401. 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.
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Section 1402. Call, Notice and Place of Meetings.
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(a)
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The Trustee may at any time call a meeting of Holders of Securities of any series for any purpose specified in Section 1401, to be held in Hartford, Connecticut or elsewhere as specified in the meeting notice.
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.
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(b)
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In case at any time the Company, pursuant to Board Resolution, or the Holders of at least 10% 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 1401, 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 purpose by giving notice thereof as provided in subsection (a) of this Section.
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Section 1403. 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
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(a)
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a Holder of one or more Outstanding Securities of such series; or
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(b)
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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.
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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 1404. 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. 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 chairperson 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 chairperson of the meeting prior to the
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adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting shall be given as provided in Section 1402(a), except that such notice need be given only once not less
than five days prior to the date on which the meeting is scheduled to be reconvened. Notice of the reconvening of an 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 only by the affirmative vote of the Holders of a majority in principal amount of the Outstanding Securities of that series; 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 such 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, whether or not present or represented at the
meeting.
Section 1405. Determination of Voting Rights; Conduct and Adjournment of Meetings.
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(a)
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Notwithstanding any other provisions of this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of Holders of Securities of such 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. 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.
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(b)
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The Trustee shall, by an instrument in writing, appoint a temporary chairperson of the meeting, unless the meeting shall have been called by the Company or by Holders of Securities as provided in Section 1402(b), in
which case the Company or the Holders of Securities of the series calling the meeting, as the case may be, shall in like manner appoint a temporary chairperson. A permanent chairperson 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.
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(c)
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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 Securities of such series held or
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represented by him or her. However, no vote shall be cast or counted at any meeting in respect of any Security challenged as not Outstanding and ruled by the chairperson of the meeting to be not
Outstanding. The chairperson of the meeting shall have no right to vote, except as a Holder of a Security of such series or proxy.
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(d)
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Any meeting of Holders of Securities of any series duly called pursuant to Section 1402 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.
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Section 1406. 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
chairperson 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 triplicate
of all votes cast at the meeting. A record, at least in triplicate, 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 facts setting forth a copy of the notice of the meeting and showing that said notice was given as provided in
Section 1402 and, if applicable, Section 1404. Each copy shall be signed and verified by the affidavits of the permanent chairperson 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.
ARTICLE XV.
SUBORDINATION
Section 1501. Securities Subordinated to Senior Indebtedness.
The Company covenants and agrees, and each Holder of Securities, by its acceptance thereof, whether upon original issue or upon transfer,
assignment or exchange thereof, likewise covenants and agrees, that the indebtedness evidenced by the Securities and the payment of the principal of (and premium, if any) and interest on and any Additional Amounts payable in respect thereof is
hereby expressly subordinated, to the extent and in the manner hereinafter set forth, in right of payment to the prior payment in full of Senior Indebtedness.
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Anything in this Indenture or in the Securities of any series to the contrary notwithstanding,
the indebtedness evidenced by the Securities shall be subordinate and junior in right of payment, to the extent and in the manner hereinafter set forth, to all Senior Indebtedness:
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(a)
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In the event of any insolvency or bankruptcy proceedings, and any receivership, liquidation, reorganization, arrangement or other similar proceedings in connection therewith, relative to the Company or to its property,
and in the event of any proceedings for voluntary liquidation, dissolution or other
winding-up
of the Company, whether or not involving insolvency or bankruptcy, then the holders of Senior Indebtedness shall
be entitled to receive payment in full of all principal, premium and interest on all Senior Indebtedness before the Holders of the Securities are entitled to receive any payment on account of principal, premium, if any, interest or Additional
Amounts upon the Securities, and to that end (but subject to the power of a court of competent jurisdiction to make other equitable provisions reflecting the rights conferred in the Securities upon Senior Indebtedness and the Holders thereof with
respect to the subordinated indebtedness represented by the Securities and the Holders hereof by a lawful plan of reorganization under applicable bankruptcy law) the holders of Senior Indebtedness shall be entitled to receive for application in
payment thereof any payment or distribution of any kind or character, whether in cash or property or securities, which may be payable or deliverable in any such proceedings in respect of the Securities after giving effect to any concurrent payment
or distribution in respect of such Senior Indebtedness;
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(b)
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In the event that any Security of any series is declared or otherwise becomes due and payable before its expressed maturity because of the occurrence of an Event of Default under clauses (5) or (6) of
Section 501 hereof (under circumstances when the provisions of the foregoing clause (a) or the following clause (c) shall not be applicable), the holders of Senior Indebtedness outstanding at the time such Security so becomes due and
payable because of such occurrence of an Event of Default hereunder shall, so long as such declaration has not been rescinded and annulled pursuant to Section 502, be entitled to receive payment in full of all principal of, and premium and
interest on, all such Senior Indebtedness before the Holders of the Securities of such series are entitled to receive any payment on account of principal of, premium, if any, or interest and Additional Amounts on the Securities of such series.
However, nothing herein shall prevent the Holders of Securities from seeking any remedy allowed at law or at equity so long as any judgment or decree obtained thereby makes provision for enforcing this clause; and
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(c)
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In the event that any default shall occur and be continuing with respect to any Senior Indebtedness permitting the holders of such Senior Indebtedness to accelerate the maturity thereof, if either
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(1)
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notice of such default, in writing, shall have been given to the Company and to the Trustee, provided that judicial proceedings shall be commenced in respect of such default within 180 days in the case of a default in
payment of principal or interest and within 90 days in the case of any other default after the giving of such notice, and provided further that only one such notice shall be given pursuant to this Section 1501(c) in any twelve months period; or
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(2)
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judicial proceedings shall be pending in respect of such default,
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the Holders of the Securities and the
Trustee, for the benefit of the Holders of the Securities, for their benefit shall not be entitled to receive any payment on account of principal, premium, if any, or interest and Additional Amounts thereon (including any such payment which would
cause such default) unless payment in full of all principal of, and premium and interest on, such Senior Indebtedness shall have been made or provided for. The Trustee, promptly upon receipt of any notice received by it pursuant to this Section
1501(c), shall send a copy of such notice to each Holder of Securities at the time outstanding as the names and addresses of such Holders appear on the Security Register.
In case despite the foregoing provisions, any payment or distribution shall, in any such event, be paid or delivered to any Holder of the
Securities or to the Trustee, for the benefit of the Holders of the Securities, before all Senior Indebtedness shall have been paid in full, such payment or distribution shall be held in trust for and so paid and delivered to the holders of Senior
Indebtedness (or their duly authorized representatives) until all Senior Indebtedness shall have been paid in full.
The Company shall
give written notice to the Trustee within five days after the occurrence of any insolvency, bankruptcy, receivership, liquidation, reorganization, arrangement or similar proceeding relative to the Company within the meaning of this
Section 1501. Upon any payment or distribution of assets of the Company referred to in this Article XV, the Trustee, subject to the provisions of Section 315(a) through 315(d) of the Trust Indenture Act, and the Holders of the Securities shall
be entitled to rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors or other liquidating agent making such payment or distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company, the amount thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article XV.
The Trustee shall be entitled to conclusively rely on the delivery to it of
a written notice by a person representing himself or herself to be a holder of Senior Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has been given by a holder of Senior Indebtedness (or a trustee or
agent on behalf of any such holder). In the event that the Trustee determines, in good faith, that further evidence is required with respect to the right of any person as a holder of Senior Indebtedness to participate in any payment or distribution
pursuant to this Section 1501, the Trustee may request such person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such person, as to the extent to which such person is entitled
to participate in such payment or distribution, and as to other facts pertinent to the rights of such person under this Section 1501, and if such evidence is not furnished, the Trustee may defer any payment to such person pending judicial
determination as to the right of such person to receive such payment.
For purposes of this Article, the words, “cash or property or
securities” shall not be deemed to include shares of stock or warrants to purchase shares of stock of the Company as reorganized or readjusted, or securities of the Company or any other corporation provided for by
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a plan of arrangement, reorganization or readjustment, the payment of which is subordinated (at least to the extent provided in this Article with respect to the Securities) to the payment in full
of all Senior Indebtedness which may at the time be outstanding; provided, that (i) the Senior Indebtedness is assumed by the new corporation, if any, resulting from any such arrangement, reorganization or readjustment, and (ii) the rights
of the holders of the Senior Indebtedness are not, without the consent of such holders, altered by such arrangement, reorganization or readjustment. The consolidation of the Company with, or the merger of the Company into, another corporation or the
liquidation or dissolution of the Company following the sale, conveyance or transfer of all or substantially all of its property and assets to another corporation upon the terms and conditions provided in Article VIII shall not be deemed a
dissolution,
winding-up,
liquidation or reorganization for the purposes of this Section if such other corporation shall, as a part of such consolidation, merger, sale, conveyance or transfer, comply with the
conditions stated in Article VIII. This Section shall be subject to the further provisions of Section 1506.
Section 1502. Subrogation.
Subject to the payment in full of all Senior Indebtedness to which the indebtedness evidenced by the Securities is in the circumstances
subordinated as provided in Section 1501, the Holders of the Securities shall be subrogated to the rights of the holders of such Senior Indebtedness to receive payments or distributions of cash, property or securities of the Company applicable
to such Senior Indebtedness until all amounts owing on the Securities shall be paid in full. As between the Company, its creditors other than holders of such Senior Indebtedness, and the Holders of the Securities, no such payment or distribution
made to the holders of such Senior Indebtedness by virtue of this Article XV which otherwise would have been made to the Holders of the Securities shall be deemed to be a payment by the Company on account of such Senior Indebtedness, it being
understood that the provisions of this Article XV are and are intended solely for the purpose of defining the relative rights of the Holders of the Securities on the one hand, and the holders of the Senior Indebtedness, on the other hand.
Section 1503. Obligation of Company Unconditional.
Nothing contained in this Article XV or elsewhere in this Indenture or in the Securities,
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(a)
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is intended to or shall impair as between its creditors other than the holders of Senior Indebtedness and the Holders of the Securities, the obligation of the Company which is absolute and unconditional, to pay to the
Holders of the Securities the principal of (and premium, if any), interest on, or any Additional Amounts with respect to, the Securities as and when the same shall become due and payable in accordance with their terms; or
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(b)
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is intended to or shall affect the relative rights of the Holders of the Securities and creditors of the Company other than the holders of Senior Indebtedness; or
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(c)
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prevent the Trustee or the Holder of any Security from exercising all remedies otherwise permitted by applicable law upon default under this Indenture, subject to the rights, if any, under this Article XV of the holders
of Senior Indebtedness in respect of cash, property or securities of the Company received upon the exercise of any such remedy.
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Upon any payment or distribution of assets of the Company referred to in this Article XV, the
Trustee and the Holders of the Securities shall be entitled to rely upon any order or decree made by any court of competent jurisdiction in which any such dissolution, winding up, liquidation or reorganization proceeding affecting the affairs of the
Company is pending or upon a certificate of the trustee in bankruptcy, receiver, assignee for the benefit of creditors, liquidating trustee or agent or other person making any payment or distribution, delivered to the Trustee or to the Holders of
the Securities, for the purpose of ascertaining the persons entitled to participate in such payment or distribution, the holders of the Senior Indebtedness and other indebtedness of the Company the amount thereof or payable thereon, the amount paid
or distributed thereon and all other facts pertinent thereto or to this Article XV.
Section 1504. Payments
on Securities Permitted.
Nothing contained in this Article XV or elsewhere in this Indenture, or in any of the Securities, shall
affect the obligation of the Company to make, or prevent the Company from making payment of the principal of (or premium, if any), interest or any Additional Amounts on the Securities in accordance with the provisions hereof and thereof, except as
otherwise provided in this Article XV.
Section 1505. Effectuation of Subordination by Trustee.
Each Holder of Securities, by his or her acceptance thereof, authorizes and directs the Trustee in his or her behalf to take such action as may
be necessary or appropriate to effectuate the subordination provided in this Article XV and appoints the Trustee his or her
attorney-in-fact
for any and all such
purposes.
Section 1506. Knowledge of Trustee.
The Company shall give prompt written notice to the Trustee and to any Paying Agent of any fact known to the Company which would prohibit the
making of any payment of moneys to or by the Trustee or any Paying Agent in respect of the Securities of any series pursuant to the provisions of this Article or would end such prohibition. Regardless of anything to the contrary contained in this
Article or elsewhere in this Indenture, the Trustee shall not be charged with knowledge of the existence of any Senior Indebtedness or of any default or event of default with respect to any Senior Indebtedness or of any other facts which would
prohibit the making of any payment of moneys to or by the Trustee or which would end such prohibition, unless and until the Trustee shall have received notice in writing at its Corporate Trust Office to that effect signed by an officer of the
Company, or by a holder or agent of a holder of Senior Indebtedness or by the trustee under any indenture pursuant to which Senior Indebtedness shall be outstanding, who shall have been certified by the Company or otherwise established to the
reasonable satisfaction of the Trustee to be such holder or agent or trustee, and, prior to the receipt of any such written notice, the Trustee shall, subject to Section 602, be entitled to assume that no such facts exist; provided that if on a
date at least five Business Days prior to the date upon which by the terms hereof any such moneys shall become payable for any purpose (including, without limitation, the
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payment of the principal of (and premium, if any), and interest on and any Additional Amounts payable in respect of any Security) the Trustee shall not have received with respect to such moneys
the notice of prohibition provided for in this Section, then, regardless of anything herein to the contrary, the Trustee shall have full power and authority to receive such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary which may be received by it on or after such prior date.
Regardless of anything
to the contrary herein, nothing shall prevent (a) any payment by the Company or the Trustee to the Holders of Securities of amounts in connection with a redemption of Securities if (i) notice of such redemption has been given pursuant to
Article XI prior to the receipt by the Trustee of written notice of prohibition as aforesaid, and (ii) such notice of redemption is given not earlier than 60 days before the redemption date, or (b) any payment by the Trustee to the Holders
of Securities of amounts deposited with it pursuant to Sections 401 or 403.
The Trustee, subject to the provisions of the Trust Indenture
Act, shall be entitled to conclusively rely on the delivery to it of a written notice by a representative or a Person representing himself or herself to be a holder of Senior Indebtedness (or a trustee on behalf of such holder) to establish that
such notice has been given by a Representative or a holder of Senior Indebtedness. In the event that the Trustee determines in good faith that further evidence is required with respect to the right of any Person as a holder of Senior Indebtedness to
participate in any payment or distribution pursuant to this Article XV, the Trustee may request such Person to furnish evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and any other facts pertinent to the rights of such Person under this Article XV, and if such evidence is not furnished the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
Section 1507. Trustee’s Relation to Senior Indebtedness.
Except as otherwise provided in the Trust Indenture Act, the Trustee shall be entitled to all the rights set forth in this Article XV with
respect to any Senior Indebtedness at the time held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of its rights as such holder. Notwithstanding anything in this
Indenture or in the Securities of any series to the contrary, nothing in this Article XV shall apply to claims of or payment to the Trustee under or pursuant to Sections 506 and 606.
With respect to holders of Senior Indebtedness, the Trustee undertakes to perform or to observe only such of its covenants and obligations as
are specifically set forth in this Article XV, and no implied covenants, duties, or obligations with respect to the holders of Senior Indebtedness shall be read into this Indenture against the Trustee. The Trustee does not owe and shall not be
deemed to owe any fiduciary duty to the holders of Senior Indebtedness and the Trustee shall not be liable to any holder of Senior Indebtedness if it shall pay over or deliver to Holders, the Company or any other Person monies or assets to which any
holder of Senior Indebtedness shall be entitled by virtue of this Article XV or otherwise.
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Section 1508. Rights of Holders of Senior Indebtedness Not
Impaired.
No right of any present or future holder of any Senior Indebtedness to enforce the subordination herein shall at any time or
in any way be prejudiced or impaired by any act or failure to act on the part of the Company or by any
non-compliance
by the Company with the terms, provisions or covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
ARTICLE XVI.
MISCELLANEOUS PROVISIONS
Section 1601. Securities in Foreign Currencies.
Whenever this Indenture provides for (i) any action by, or the determination of any of the rights of, Holders of Securities of any series
in which not all of such Securities are denominated in the same currency, or (ii) any distribution to Holders of Securities, in the absence of any provision to the contrary in the form of Security of any particular series, any amount in respect
of any Security denominated in a currency other than United States dollars shall be treated for any such action or distribution as that amount of United States dollars that could be obtained for such amount on such reasonable basis of exchange and
as of the record date with respect to Registered Securities of such series (if any) for such action, determination of rights or distribution (or, if there shall be no applicable record date, such other date reasonably proximate to the date of such
action, determination of rights or distribution) as the Company may specify in a written notice to the Trustee or, in the absence of such written notice, as the Trustee or its agents may determine.
Section 1602. Exemption from Individual Liability.
No recourse under or upon any obligation, covenant or agreement of this Indenture, or of any Security, or for any claim based thereon otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer or director, as such, past, present or future, of the Company or of any predecessor or successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any assessment or penalty or otherwise; it being expressly understood and agreed that this Indenture and the obligations issued hereunder are solely corporate obligations of the
Company and that no such personal liability whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers or directors, as such, of the Company or of any predecessor or successor corporation, or any of them,
because of the creation of the indebtedness hereby authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities or implied therefrom, and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of, and any and all such rights and claims against, every such incorporator, stockholder, officer or director, as such, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations, covenants or agreements contained in this Indenture or in any of the Securities, or implied therefrom, are hereby expressly waived and released as a condition of, and as a consideration for, the
execution and delivery of this Indenture and the issue of such Securities.
* * * * *
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This instrument 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 instrument. The parties may sign any number of copies of this Indenture. Each signed copy shall be an original, but all of them together represent the
same agreement. The exchange of copies of this Indenture and of signature pages by facsimile or PDF 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 for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of the
day and year first above written.
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HOME BANCSHARES, INC.
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Issuer
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By:
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/s/ Brian S. Davis
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Name:
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Brian S. Davis
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Title:
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Chief Financial Officer & Treasurer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Crystal Maston
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Name:
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Crystal Maston
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Title:
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Vice President
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Signature Page to Subordinated Indenture
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Exhibit 4.2
Execution Version
HOME
BANCSHARES, INC.
FIRST SUPPLEMENTAL INDENTURE
dated as of April 3, 2017
to the Subordinated Indenture
dated as of April 3, 2017
5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027
U.S. BANK NATIONAL ASSOCIATION, as Trustee
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE (“First Supplemental Indenture”), dated as of April 3, 2017 between HOME BANCSHARES, INC., an
Arkansas corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association, not in its individual capacity but solely as trustee (the “Trustee”).
RECITALS
WHEREAS
,
the Company and the Trustee have executed and delivered a Subordinated Indenture, dated as of April 3, 2017 (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 Three Hundred Million Dollars ($300,000,000) aggregate principal amount of a new series of Securities
of the Company designated as its 5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027 (the “2027 Notes”) have been authorized by resolutions adopted by
the Board of Directors of the Company;
WHEREAS
, the Company desires to issue and sell Three Hundred Million Dollars ($300,000,000)
aggregate principal amount of the 2027 Notes as of the date hereof;
WHEREAS
, the Company desires to establish the terms of the
2027 Notes;
WHEREAS
, all things necessary to make this First Supplemental Indenture a legal and binding supplement to the Base
Indenture 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 2027 Notes by the Holders thereof, the Company and the Trustee covenant and agree, for the equal and proportionate benefit of the Holders of the 2027 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 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 2027 Notes.
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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 101 through 116 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 2027 Notes, by inserting
the following additional defined terms in their appropriate alphabetical positions:
“
1940 Act Event
” means the Company
becoming required to register as an investment company pursuant to the Investment Company Act of 1940, as amended.
“
Calculation
Agent
” has the meaning specified in Section 3.02(e)(iv).
“
Designated LIBOR Page
” means the display on Bloomberg
Page BBAM1 (or any successor or substitute page of such service, or any successor to such service selected by the Company), 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.
“
DTC
” means the Depository Trust Company.
“
Federal Reserve
” means the Board of Governors of the Federal Reserve System (or any successor regulatory authority with
jurisdiction over bank holding companies).
“
Fixed Rate Interest Payment Date
” has the meaning specified in Section
3.02(e)(i).
“
Fixed Rate Period
” has the meaning specified in Section 3.02(e)(i).
“
Fixed Rate Regular Record Date
” has the meaning specified in Section 3.02(e)(i).
“
Floating Rate Interest Payment Date
” has the meaning specified in Section 3.02(e)(ii).
“
Floating Rate Period
” has the meaning specified in Section 3.02(e)(ii).
“
Floating Rate Regular Record Date
” has the meaning specified in Section 3.02(e)(ii).
“
Interest Payment Date
” has the meaning specified in Section 3.02(e)(ii).
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“
Issue Date
” means April 3, 2017.
“
London Banking Day
” means any day on which commercial banks are open for business (including dealing in U.S. dollars) in
London.
“
Representative Amount
” has the meaning specified 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
” means the receipt by the
Company of an opinion of independent tax counsel to the effect that as a result of
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(a)
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an amendment to, or change (including any announced prospective change) in any law or treaty, or any regulations thereunder of the United States or any of its political subdivisions or taxing authorities;
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(b)
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any judicial decision, administrative action, official administrative pronouncement, ruling, regulatory procedure, regulation, notice or announcement, including any notice or announcement of intent to adopt or
promulgate any ruling, regulatory procedure or regulation (any of the foregoing, an “administrative or judicial action:”);
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(c)
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any amendment to or change in any official position with respect to, or any interpretation of, an administrative or judicial action or a law or regulation of the United States that differs from the previously generally
accepted position or interpretation; or
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(d)
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a threatened challenge asserted in writing in connection with an audit of the Company’s federal income tax returns or positions or a similar audit of any of the Company’s Subsidiaries, or a publicly known
threatened challenge asserted in writing against any other taxpayer that has raised capital through the issuance of securities that are substantially similar to the 2027 Notes,
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in each case, occurring or becoming publicly known on or after the Issuer Date, there is more than an insubstantial risk that the interest payable by the
Company on the 2027 Note is not, or, within ninety (90) days of receipt of such opinion, will not be, deductible by the Company, in whole or in part, for U.S. federal income tax purposes.
“
Tier 2 Capital Event
” means the receipt by the Company of an opinion of independent bank regulatory counsel to the effect
that, as a result of:
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(a)
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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
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(b)
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any official administrative pronouncement or judicial decision interpreting or applying such laws or regulations,
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which amendment or change is effective or which pronouncement or decision is announced on or after the Issue Date, the 2027 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 Federal Reserve, as then in effect and
applicable to the Company.
“
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 is hereby directed to 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 in writing, 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 in writing (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 is hereby directed to 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 in writing, 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, 2.050%. 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.
ARTICLE III
FORM AND
TERMS OF THE 2027 NOTES
Section 3.01. Form and Dating.
(a) The 2027 Notes shall be substantially in the form of Exhibit A attached hereto. The 2027 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 2027 Notes shall be dated the date of their authentication.
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(b) The terms contained in the 2027 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 2027 Notes.
The following terms
relating to the 2027 Notes are hereby established:
(a)
Title
. The 2027 Notes shall constitute a series of
Securities having the title “Home BancShares, Inc. 5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027” and the CUSIP number 436893AA9.
(b)
Principal Amount
. The aggregate principal amount of the 2027 Notes that may be authenticated and delivered
under the Indenture, as amended hereby, shall be Three Hundred Million Dollars ($300,000,000) on the Issue Date. Provided that no Event of Default has occurred and is continuing with respect to the 2027 Notes, the Company may, without notice to or
the consent of the Holders, create and issue additional Securities having the same terms as, and ranking equally and ratably with, the 2027 Notes in all respects and so that such additional 2027 Notes will be consolidated and form a single series
with, and have the same terms as to status, redemption or otherwise as, the 2027 Notes initially issued, provided that such additional 2027 Notes are fungible for U.S. federal income tax purposes with the 2027 Notes.
(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 2027 Notes are registered for such interest at the close of business on the last day of the month immediately preceding the applicable Interest Payment Date, whether or not such day
is a Business Day.
(d)
Maturity Date
. The entire outstanding Principal of the 2027 Notes shall be payable
on April 15, 2027.
(e)
Interest
.
(i) The 2027 Notes will bear interest at a fixed rate of 5.625% per annum from and including April 3, 2017 to, but
excluding, April 15, 2022 (the “Fixed Rate Period”). Interest accrued on the 2027 Notes during the Fixed Rate Period will be payable semi-annually in arrears on April 15 and October 15 of each year, commencing on
October 15, 2017 (each such date a “Fixed Rate Interest Payment Date”). The interest payable during the Fixed Rate Period will be paid to each holder in whose name a 2027 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 2027 Notes will bear a floating interest rate from and including April 15, 2022 to the Maturity Date or
Redemption Date (the “Floating Rate Period”). The
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floating interest rate will be reset quarterly, and the interest rate for any Floating Rate Period shall be equal to Three-Month LIBOR plus 3.575%. During the Floating Rate Period, interest on
the 2027 Notes will be payable quarterly in arrears on January 15, April 15, July 15 and October 15 of each year commencing on July 15, 2022 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”). Except as required under Section 114 of the Base Indenture, 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 April 15, 2022, 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 2027 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.
(iv) The Company agrees that for so long as
any of the 2027 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 U.S. Bank National Association as Calculation Agent for the purposes of determining Three-Month LIBOR for each Floating Interest Period and U.S. 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.
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(f)
Place of Payment of Principal and Interest.
So long as the 2027
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 2027 Notes by wire transfer in immediately available funds to the Depository or its nominee, in accordance
with applicable procedures of the Depository. Notwithstanding any other provision of the Base Indenture, the 2017 Notes in global form shall only be exchangeable for certificated subordinated notes in definitive, fully registered form without
interest coupons only if DTC notifies the Company that it is unwilling or unable to continue as depository for the global notes.
(g)
Redemption
. The Company may, at its option, redeem the 2027 Notes in whole or in part on the interest
payment date of April 15, 2022 or any interest payment date thereafter. The Company may also, at its option, redeem the 2027 Notes before the Stated Maturity in whole, but not in part, at any time, including before April 15, 2022, upon the
occurrence of: (i) a Tier 2 Capital Event, (ii) a Tax Event, or (iii) a 1940 Act Event. Any such redemption will be at a Redemption Price equal to 100% of the principal amount of the 2027 Notes to be redeemed, plus accrued and unpaid
interest to, but excluding, the Redemption Date fixed by the Company. No such redemption of the 2017 Notes by the Company prior to the Stated Maturity shall be made without the prior approval of the Federal Reserve (which approval is to be obtained
by the Company). The provisions of Article XI of the Base Indenture shall apply to any redemption of the 2027 Notes pursuant to this Article III. The Company’s election to redeem any 2027 Notes upon the occurrence of any of the enumerated
events above will be provided to the Trustee in the form of an Officer’s Certificate dated at least forty-five (45) days prior to the redemption date, or such shorter notice as may be acceptable to the Trustee. In case of any such
election, notice of redemption must be provided by giving not less than thirty (30) nor more than sixty (60) days’ notice of such redemption to the registered holders of the 2027 Notes and the Trustee.
(h)
Sinking Fund
. There shall be no sinking fund for the 2027 Notes.
(i)
Denomination
. The 2027 Notes and any beneficial interest in the 2027 Notes shall be in minimum denominations
of $1,000 and integral multiples of $1,000 in excess thereof.
(j)
Currency of the 2027 Notes
. The 2027
Notes shall be denominated, and payment of principal and interest of the 2027 Notes shall be payable, in the currency of the United States of America.
(k)
Acceleration
. Only the Events of Default described in clauses (5) and (6) of Section 501 of the
Base Indenture shall permit acceleration of the maturity of the 2027 Notes, as provided in Section 502 of the Base Indenture.
(l)
Stated Maturity
. The principal of the 2027 Notes shall be payable on April 15, 2027, subject to
acceleration as provided under the Indenture.
(m)
Registered Form
. The 2027 Notes shall be issuable as
registered global Securities, and the Depository for the 2027 Notes shall be DTC or any successor Depository appointed by the Company within 90 days of the termination of services of DTC (or any
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successor to DTC). Sections 305 and 307 of the Base Indenture shall apply to the 2027 Notes. The 2027 Notes shall be issued as Registered Securities and in the form of one or more permanent
global Securities, without coupons, registered in the name of the Depository or its nominee. Except as otherwise provided in Section 305 of the Base Indenture, the global Securities described above may be transferred by the Depository, in whole
but not in part, only to a nominee of the Depository, or by a nominee of the Depository to the Depository, or to a successor Depository or to a nominee of such successor Depository. Owners of beneficial interests in such global Securities will not
be considered the Holders thereof for any purpose under the Indenture. The rights of owners of beneficial interests in such global Securities shall be exercised only through the Depository.
(n)
Events of Default
. The Events of Default provided for in Section 501 of the Base Indenture shall apply
to the 2027 Notes.
(o)
Acceleration of Maturity, Rescission and Annulment.
Section 502 of the Base
Indenture shall apply to the 2027 Notes.
(p)
Collection of Indebtedness and Suits for Enforcement by
Trustee.
Section 503 of the Base Indenture shall apply to the 2027 Notes.
(q)
Ranking
. The 2027
Notes shall rank junior to and shall be subordinated to all Senior Indebtedness 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 other than holders of the Company’s trade accounts payable incurred in the ordinary course. The 2027 Notes shall rank equally among themselves and with all of the Company’s other subordinated unsecured indebtedness
that, in the instrument creating or evidencing the same or pursuant to which the same is outstanding, provides that such obligations are not superior in right of payment to the 2027 Notes or to other indebtedness that is
pari passu
with, or
is not subordinate to, the 2027 Notes; provided that the 2027 Notes will rank senior to the Company’s obligations relating to any outstanding junior subordinated debt securities issued to the Company’s capital trust subsidiaries. It is
intended that the 2027 Notes be and are Tier 2 capital or the equivalent, for all regulatory purposes.
(r)
No
Collateral
. The 2027 Notes shall not be entitled to the benefit of any security interest in, or collateralization by, any rights, property or interest of the Company.
(s)
Additional Terms
. Other terms applicable to the 2027 Notes are as otherwise provided for in the Base
Indenture, as supplemented by this First Supplemental Indenture.
ARTICLE IV
SUPPLEMENTAL INDENTURES
Section
4.01.
Supplemental Indentures.
The following paragraph shall be added to the
end of Section 901 of the Base Indenture and shall only apply to the 2027 Notes:
“Not in limitation of the foregoing, without
the consent of any Holder of 2027 Notes, the Company and the Trustee may amend or supplement the Indenture or the 2027 Notes to conform the terms of the Indenture and the 2027 Notes to the description of the 2027 Notes in the prospectus supplement
dated April 3, 2017 relating to the offering of the 2027 Notes.”
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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.
Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS FIRST
SUPPLEMENTAL INDENTURE AND THE 2027 NOTES.
Section
5.03.
Duplicate Originals.
The
parties may sign any number of copies of this First Supplemental Indenture. Each signed 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 2027 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.
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 for the
payment of the principal of or interest on any 2027 Note, or for any claim based thereon or otherwise in respect thereof, shall be had against any shareholder, employee, agent, officer or director, as such, past, present or future, of the Company or
of any successor Person; 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 2027 Notes.
9
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 2027 Notes, or for or in respect of the recitals contained herein, all of which recitals are made solely by the Company.
[Signature pages follow]
10
IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly
executed as of the date first above written.
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HOME BANCSHARES, INC.
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By:
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/s/ Brian S. Davis
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Brian S. Davis
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Chief Financial Officer & Treasurer
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Signature Page to First Supplemental Indenture
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ Crystal Maston
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Name:
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Crystal Maston
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Title:
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Vice President
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Signature Page to First Supplemental Indenture
12
EXHIBIT A
FORM OF NOTE
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 INDEBTEDNESS (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 DEPOSITORY OR A NOMINEE OF THE DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITORY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY, BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE
COMPANY 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.
HOME BANCSHARES, INC.
5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027
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$300,000,000
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ISIN: US436893AA95
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Home BancShares, Inc., an Arkansas 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 THREE HUNDRED MILLION DOLLARS ($300,000,000) (or such other amount as set
forth in the Schedule of Increases or Decreases in Global Note attached hereto) on April 15, 2027 (such date is hereinafter referred to as the “
Stated Maturity Date
”), unless redeemed prior
Exhibit A-1
to such date, and to pay interest thereon (i) from, and including, April 3, 2017, to, but excluding, April 15, 2022, unless redeemed prior to such date, at a rate of 5.625% per
annum, semi-annually in arrears on April 15 and October 15 of each year, commencing October 15, 2017 (each such date, a “
Fixed Rate Interest Payment Date
,” with the period from, and including, April 3, 2017 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, April 15, 2022 to, but excluding, the Stated Maturity Date, unless redeemed subsequent to April 15, 2022, but prior to the Stated Maturity Date, at a rate equal to Three-Month LIBOR, reset quarterly, plus
3.575%, payable quarterly in arrears on January 15, April 15, July 15 and October 15 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, April 15, 2022 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 April 15, 2022, 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%.
Any principal and premium, and any such
installment of interest, which is overdue shall bear interest at the applicable rate set forth in the previous paragraph (to the extent that the payment of such interest shall be legally enforceable), from the dates such amounts are due until they
are paid or made available for payment, and such interest shall be payable on demand. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in the Indenture, be paid to the Person in whose
name this Note is registered at the close of business on the last day of the month (whether or not a Business Day) immediately preceding such Interest Payment Date.
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.
Exhibit A-2
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.]
Exhibit A-3
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
Date: April 3, 2017.
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HOME BANCSHARES, INC.
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By:
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Name:
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Brian S. Davis
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Title:
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Chief Financial Officer & Treasurer
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Exhibit A-4
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes of the series designated therein referred to in the within-mentioned Indenture.
Date of authentication: April 3, 2017
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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Authorized Signatory
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Exhibit A-5
REVERSE OF NOTE
HOME BANCSHARES, INC.
5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027
This Note is one of a duly authorized issue of Securities of the Company of a series designated as the “5.625%
Fixed-to-Floating
Rate Subordinated Notes due 2027” (herein called the “
Notes
”) initially issued in an aggregate principal amount of $300,000,000 on
April 3, 2017. 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 Subordinated Indenture, dated as
of April 3, 2017 (the “
Base Indenture
”), between the Company and U.S. 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 April 3, 2017 (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 Notes shall rank junior to
and shall be subordinated to all Senior Indebtedness of the Company, whether existing as of the date hereof or hereafter issued or incurred, including all indebtedness relating to money owed to general creditors other than holders of the
Company’s trade accounts payable incurred in the ordinary course. The Notes shall rank equally among themselves and with all of the Company’s other subordinated unsecured indebtedness that, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, provides that such obligations are not superior in right of payment to the Notes or to other indebtedness that is
pari passu
with, or is not subordinate to, the Notes; provided that the Notes will
rank senior to the Company’s obligations relating to any outstanding junior subordinated debt securities issued to the Company’s capital trust subsidiaries. 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.
Exhibit A-6
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 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 V of the Base Indenture and Sections 3.02(k) and 3.02(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
April 15, 2022. The Company may also, at its option, redeem the Notes before the Stated Maturity Date, in whole, but not in part, at any time, including before April 15, 2022, upon the occurrence of a Tier 2 Capital Event, a Tax Event or a
1940 Act Event. 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 XI 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
Exhibit A-7
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 “
Depository
”) to a nominee of such Depository or by a nominee of such Depository or by the Depository or any nominee to a successor Depository 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 Depository or its nominee (with respect to interest of persons that have accounts with the
Depository (“
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 certificates 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 Depository, 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 Depository 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 305
of the Base Indenture, beneficial owners of Global Notes will not be entitled to receive physical delivery of Notes in the form of individual certificates, 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 Depository or its nominee. Accordingly, each person owning a beneficial interest in a Global Note must rely on the procedures of the Depository 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.
Exhibit A-8
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 Depository 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 Depository’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 Depository, or for maintaining, supervising or reviewing any records of the Depository 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 225 Asylum Street, 23rd Floor, Hartford, Connecticut 06103. 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 certificates 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 SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE
LAWS OF THE STATE OF NEW YORK.
Exhibit A-9
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 Home BancShares, 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.
Exhibit A-10
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL NOTE
The initial principal amount of this Global Note is $300,000,000. The following increases or decreases in the principal amount of this Global
Note have been made:
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Date
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Amount of
decrease in
principal
amount of
this
Global Note
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Amount of
increase in
principal of
this
Global Note
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Principal
amount of this
Global
Note
following such
decrease or
increase
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Signature of
authorized or
signatory
of
Trustee
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Exhibit A-11
