Exhibit 1.1
TriState Capital Holdings, Inc.
(a Pennsylvania corporation)
$60,000,000
5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030
UNDERWRITING AGREEMENT
May 6, 2020
Stephens Inc.
111 Center Street
Little Rock, Arkansas 72201
as Representative of the Underwriters
named in Schedule A hereto
Ladies and Gentlemen:
TriState Capital
Holdings, Inc., a Pennsylvania corporation (the “Company”), proposes, subject to the terms and conditions stated herein,
to issue and sell to the several underwriters named in Schedule A hereto (each, an “Underwriter” and, collectively,
the “Underwriters”), for which Stephens Inc., is acting as representative (the “Representative”), an aggregate
of $60,000,000 of the Company’s 5.75% Fixed-to-Floating Rate Subordinated Notes due 2030 (the “Securities”).
The Securities will be issued pursuant to that certain Subordinated Indenture, dated as of the Closing Time (the “Base Indenture”),
between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a First Supplemental
Indenture thereto relating to the Securities, to be dated as of the Closing Time, between the Company and the Trustee (the “Supplemental
Indenture” and, together with the Base Indenture, the “Indenture”).
The Company understands
that the Underwriters propose to make a public offering of the Securities as soon as it deems advisable after this Agreement has
been executed and delivered.
The Company has
filed with the United States Securities and Exchange Commission (the “Commission”) shelf registration statements on
Form S-3 (File No. 333-235713 and File No. 333-222074) under the Securities Act of 1933, as amended (the “1933 Act,”
and such rules and regulations thereunder being referred to as the “1933 Act Regulations”), which registration statements
have become effective and each of which includes a form of prospectus covering the registration of the Securities under the 1933
Act. Promptly after execution and delivery of this Agreement, the Company will prepare and file a prospectus supplement in accordance
with the provisions of Rule 430B of the 1933 Act Regulations (“Rule 430B”) and paragraph (b) of Rule 424 of the 1933
Act Regulations (“Rule 424(b)”). The information included in such prospectus that was omitted from the shelf registration
statements at the time each such shelf registration statement became effective but is deemed to be part of each such registration
statement at the time it became effective pursuant to paragraph (b) of Rule 430B is referred to as “Rule 430 Information.”
Any prospectus that omitted, as applicable, the Rule 430 Information, that was used after such shelf registration statements were
filed and prior to the execution and delivery of this Agreement, is herein called a “preliminary prospectus.” Such
shelf registration statements, including any amendments thereto, the exhibits and schedules thereto, if any, including Form T-1,
and the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time each such shelf
registration statement became effective, together with any prospectus filed with the Commission pursuant to Rule 424(b) containing
Rule 430 Information, as applicable, are herein collectively called the “Registration Statements” (each individually,
a “Registration Statement”). The prospectuses, in the form in which each such prospectus appears in the applicable
Registration Statement and including the documents incorporated by reference therein, are hereinafter called the “Base Prospectuses”;
and each supplemented form of prospectus, in the form in which it will be filed with the Commission pursuant to Rule 424(b) and
including the documents incorporated by reference therein, is hereinafter called a “Prospectus Supplement,” and such
final Prospectus Supplement as filed, along with the Base Prospectuses, is herein after called the “Prospectus.” For
purposes of this Agreement, all references to the Registration Statements, any preliminary prospectus, any preliminary prospectus
supplement, the Base Prospectuses, any Prospectus Supplement, or the Prospectus, or any amendment or supplement to any of the foregoing
shall be deemed to include the copy filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system (“EDGAR”). All references herein to any “preliminary prospectus” shall be deemed to mean and include,
without limitation, the Statutory Prospectus (as defined below) and each “preliminary prospectus” included in the Registration
Statements referred to above. Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein referred
to as the “Rule 462(b) Registration Statement,” and after such filing the term “Registration Statements”
shall include the Rule 462(b) Registration Statement.
All references in
this Agreement to financial statements and schedules and other information which is “contained,” “included”
or “stated” in the Registration Statements, any preliminary prospectus, the Base Prospectuses, any Prospectus Supplement,
or the Prospectus (or other references of like import) shall be deemed to mean and include all such financial statements and schedules
and other information that are incorporated therein by reference; and all references in this Agreement to the terms “amend,”
“amendment” or “supplement” with respect to the Registration Statements, the Base Prospectuses, a Prospectus
Supplement or the Prospectus shall be deemed to mean and include the filing of a post-effective amendment, a free writing prospectus
(as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”)) or any document under the Securities Exchange Act
of 1934, as amended (the “1934 Act”), in each case where such post-effective amendment, free writing prospectus or
other document is incorporated therein by reference.
SECTION 1.
Representations and Warranties and Agreements.
(a)
Representations and Warranties. The Company represents and warrants to, and agrees
with, each of the Underwriters as of the date hereof and as of the Closing Time referred to in Section 2(b) hereof, as follows:
(i)
Compliance with Registration Requirements. (A) At the time of filing the Registration
Statements, any 462(b) Registration Statement and any post-effective amendments thereto, (B) at the earliest time thereafter that
the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations)
of the Securities, and (C) at the date hereof, (x) the Company satisfied and satisfies the registrant eligibility requirements
for the use of Form S-3 under the 1933 Act and (y) the Company was not and is not an “ineligible issuer” as defined
in Rule 405. The Registration Statements became effective on January 16, 2020 and December 21, 2017, respectively. No stop order
suspending the effectiveness of the Registration Statements, any Rule 462(b) Registration Statement, or any respective post-effective
amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge
of the Company, are contemplated by the Commission, and any request on the part of the Commission for additional information has
been complied with. The Registration Statements meet the requirements set forth in Rule 415 of the 1933 Act Regulations.
At the respective
times the Registration Statements, any Rule 462(b) Registration Statement and any post-effective amendments thereto became effective
and at the Closing Time, the Registration Statement, the Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations, the
Trust Indenture Act of 1939, as amended (the “1939 Act”), and the rules and regulations of the Commission under the
1939 Act, and did not and will not contain an 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. Neither the Prospectus nor any amendments or supplements
thereto, at the time the Prospectus or any such amendment or supplement was issued and at the Closing Time, 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.
Each preliminary
prospectus, the Base Prospectuses, any Prospectus Supplement, and the Prospectus complied when so filed in all material respects
with the 1933 Act and the 1933 Act Regulations and each preliminary prospectus, the Base Prospectuses, any Prospectus Supplement,
and the Prospectus delivered to the Underwriters for use in connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
As of the Applicable
Time, neither (x) the Issuer-Represented General Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
Statutory Prospectus, all considered together (collectively, the “General Disclosure Package”), nor (y) any individual
Issuer-Represented Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included
any untrue statement of a material fact or omitted 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.
As used in this
subsection and elsewhere in this Agreement:
“Applicable
Time” means 3:45 p.m. (Eastern time) on the date of this Agreement or such other time as agreed by the Company and the Representative.
“Issuer-Represented
Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations
(“Rule 433”), relating to the Securities, including, without limitation, those listed on Schedule B hereto, that (A)
is required to be filed with the Commission by the Company or (B) is exempt from filing with the Commission pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering thereof that does not reflect the final terms, in each case
in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s
records pursuant to Rule 433(g).
“Issuer-Represented
General Free Writing Prospectus” means any Issuer-Represented Free Writing Prospectus that is intended for general distribution
to investors, as evidenced by its being specified in Schedule B hereto.
“Issuer-Represented
Limited Use Free Writing Prospectus” means any Issuer-Represented Free Writing Prospectus that is not an Issuer-Represented
General Free Writing Prospectus.
“Statutory
Prospectus” as of any time means the Base Prospectuses and the preliminary prospectus supplement relating to the offering
of the Securities dated May 5, 2020, in the form first furnished to the Underwriters by the Company for use in connection with
the offering of the Securities, including the documents incorporated and deemed to be incorporated by reference therein pursuant
to Item 12 of Form S-3 under the 1933 Act at such time.
“Term Sheet”
means a pricing term sheet substantially in the form of Schedule C hereto.
Each Issuer-Represented
Free Writing Prospectus, as of its issue date and at all subsequent times through the completion of the public offering and sale
of the Securities or until any earlier date that the Company notified or notifies the Representative did not, does not and will
not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statements
or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be
a part thereof that has not been superseded or modified, including any document incorporated by reference therein and any Prospectus
Supplement deemed to be a part thereof that has not been superseded or modified.
The representations
and warranties in this subsection shall not apply to statements in or omissions from the Registration Statements, any preliminary
prospectus, the Base Prospectuses, any Prospectus Supplement, or the Prospectus or any Issuer-Represented Free Writing Prospectus
made in reliance upon and in conformity with written information furnished to the Company by an Underwriter through the Representative
expressly for use therein, which the parties acknowledge and agree consists only of the information contained in the third and
fourth sentences in the first paragraph and the second paragraph under the caption “Market Making, Stabilization and Other
Transactions” contained in the Registration Statements, the preliminary prospectus contained in the General Disclosure Package
and the Prospectus (the “Underwriter Information”).
(ii)
Incorporated Documents. The documents incorporated or deemed to be incorporated by
reference in the Registration Statements and the Prospectus, at the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission
thereunder (the “1934 Act Regulations”), and, when read together with the other information in the General Disclosure
Package, in the Prospectus, at the time the Registration Statements became effective or when such incorporated documents were filed
with the Commission, as the case may be, did not and will not contain an 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.
(iii)
Independent Accountants. KPMG LLP, the accounting firm that certified certain of the
financial statements of the Company included in the Registration Statements, the General Disclosure Package and the Prospectus,
is an independent registered public accounting firm as required by the 1933 Act and the 1933 Act Regulations. With respect to the
Company, KPMG LLP is not and has not been in violation of the auditor independence requirements of the Sarbanes-Oxley Act of 2002
(“Sarbanes-Oxley Act”) and the related rules and regulations of the Commission.
(iv)
Financial Statements. The financial statements of the Company incorporated by reference
in the Registration Statements, the General Disclosure Package and the Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries at the dates indicated and the consolidated statements of income and
comprehensive income, changes in 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 accounting principles generally accepted
in the United States of America (“GAAP”) applied on a consistent basis throughout the periods involved. The selected
financial data and the summary financial information included in the Registration Statements, the General Disclosure Package and
the Prospectus present fairly in all material respects the information shown therein and have been compiled on a basis consistent
with that of the audited financial statements incorporated by reference therein. No other financial statements or supporting schedules
are required to be included in the Registration Statements. To the extent applicable, all disclosures contained in the Registration
Statement, the General 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 of the 1934 Act
and Item 10(e) of Regulation S-K under the 1933 Act, as applicable. The Company meets the requirements under the 1933 Act specified
in the Financial Industry Regulatory Authority, Inc. (“FINRA”) Conduct Rule 5110(b)(7)(C)(i).
(v)
No Material Adverse Change in Business. Since the respective dates as of which information
is given in the Registration Statements, the General Disclosure Package and the Prospectus, except as otherwise stated therein,
(A) there has been no Material Adverse Effect (as defined below) or any fact, change, occurrence, event or circumstance that
has or would reasonably be expected to have a Material Adverse Effect, (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, (C) except for dividends on (x) the 6.75% Fixed-to-Floating
Rate Series A Non-Cumulative Perpetual Preferred Stock, liquidation value $1,000.00 per share (the “Series A Preferred Stock”),
and (y) the 6.375% Fixed-to-Floating Rate Series B Non-Cumulative Perpetual Preferred Stock, liquidation value $1,000.00 per share
(the “Series B Preferred Stock”), there has been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock, (D) there has been no material loss or interference with the Company’s business
from fire, explosion, pandemics or other public health emergencies (including the COVID-19 outbreak), flood, earthquakes, accident
or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree
that would reasonably be expected to have a Material Adverse Effect, and (E) there has not been any material decrease in the capital
stock or any material increase in any short-term or long-term indebtedness of the Company or the subsidiaries (other than advances
from the Federal Home Loan Bank of Pittsburgh to the Bank). For purposes of this Agreement, “Material Adverse Effect”
means a material adverse effect (I) on the business, business prospects, management, financial position, shareholders’ equity
or results of operations of the Company and its subsidiaries, considered as one enterprise, or (II) that would prevent or substantially
impair the consummation of the transactions contemplated by this Agreement.
(vi)
Good Standing of the Company. The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the Commonwealth of Pennsylvania and has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the General Disclosure Package and the Prospectus
and to enter into and perform its obligations under this Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each other jurisdiction in which such qualification is required, whether by reason
of the ownership or leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing
would not reasonably be expected to have a Material Adverse Effect.
(vii)
Good Standing of Subsidiaries. Each significant subsidiary (as defined in Rule 1-02
of Regulation S-X) of the Company (each, a “Significant Subsidiary”) has been duly organized and is validly existing
as a corporation or other organization in good standing under the laws of the jurisdiction of its incorporation, formation or organization,
has the requisite power and authority to own, lease and operate its properties and to conduct its business as described in the
General Disclosure Package and the Prospectus and is duly qualified as a foreign corporation or other business entity 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 reasonably
be expected to have a Material Adverse Effect. Except as otherwise disclosed in the Registration Statements, the General Disclosure
Package and the Prospectus, all of the issued and outstanding capital stock of each such Significant Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding shares of capital stock
of any subsidiary was issued in violation of the preemptive or similar rights of any securityholder of such subsidiary. A list
of all subsidiaries of the Company is contained on Schedule D hereto. Other than the subsidiaries of the Company listed on Schedule
D hereto, the Company has no Significant Subsidiaries.
(viii)
Capitalization. The authorized, issued and outstanding capital stock of the Company
is as set forth in the General 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 Statements, the General Disclosure Package or the Prospectus or pursuant
to the exercise of convertible securities or options referred to in the Registration Statements, the Disclosure Package or the
Prospectus). The shares of the Company’s issued and outstanding capital stock have been duly authorized and validly issued
and are fully paid and non-assessable; none of the outstanding shares of capital stock of the Company was issued in violation of
the preemptive or other similar rights of any securityholder of the Company.
(ix)
Authorization of Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(x)
Description of Securities. The Securities conform, in all material respects, to all
statements relating thereto contained in the Registration Statements, the General Disclosure Package and the Prospectus.
(xi)
Absence of Defaults and Conflicts. Neither the Company nor any of its subsidiaries
is (A) in violation of its charter or bylaws or (B) in default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, deed of trust, loan or credit agreement, note, lease or other agreement
or instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any subsidiary is subject (collectively, “Agreements and Instruments”)
except for such defaults that would not reasonably be expected to result in a Material Adverse Effect; and the execution, delivery
and performance of this Agreement and the consummation of the transactions contemplated herein and in the Registration Statements
(including the issuance and sale of the Securities and the use of the proceeds from the sale of the Securities as described in
the Prospectus under the caption “Use of Proceeds”) and compliance by the Company with its obligations hereunder have
been duly authorized by all necessary corporate action and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default or Repayment Event (as defined below) under, or result
in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant
to, the Agreements and Instruments (except for such conflicts, breaches or defaults or liens, charges or encumbrances that, individually
or in the aggregate, would not reasonably be expected to have a Material Adverse Effect), nor will such action result in any violation
of the provisions of the charter or bylaws of the Company or any subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their assets, properties or operations (except for such violations that, individually or in
the aggregate, would not reasonably be expected to have a Material Adverse Effect). As used herein, a “Repayment Event”
means any event or condition which gives the holder of any note, debenture or other evidence of indebtedness (or any person acting
on such holder’s behalf) the right to require the repurchase, redemption or repayment of all or any portion of such indebtedness
by the Company or any subsidiary.
(xii)
Absence of Labor Dispute. No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, which would reasonably be expected to have a Material Adverse
Effect.
(xiii)
Absence of Proceedings. There is no action, suit, proceeding, inquiry or investigation
before or brought by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company,
threatened, against or affecting the Company or any subsidiary, which is required to be disclosed in the Registration Statements
(other than as disclosed therein), or which would reasonably be expected to have a Material Adverse Effect; the aggregate of all
pending legal or governmental proceedings to which the Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the Registration Statements, including ordinary routine litigation
incidental to the business, would not reasonably be expected to have a Material Adverse Effect.
(xiv)
Bank Holding Company Act. The Company has been duly registered as a bank holding company
under the applicable provisions of the Bank Holding Company Act of 1956, as amended. Each of the Company and TriState Capital Bank,
a Pennsylvania-chartered bank (the “Bank”), is in compliance in all material respects with all applicable laws administered
by and regulations of the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation (the “FDIC”),
and the Pennsylvania Department of Banking and Securities, as applicable (collectively, the “Bank Regulatory Authorities”).
Except as disclosed in the Registration Statements, the General Disclosure Package and the Prospectus, neither the Company nor
any of its subsidiaries is subject or is party to any corrective, suspension or cease-and-desist order, agreement, consent agreement,
memorandum of understanding or other regulatory enforcement action, proceeding or order with or by, or is a party to any commitment
letter or similar undertaking to, or is subject to any directive by, or has been a recipient of any supervisory letter (including,
without limitation, any notification from the Federal Reserve of a proposal to increase the minimum capital requirements of the
Company or any of its subsidiaries, pursuant to the Federal Reserve’s authority under 12 U.S.C. 3907(a)(2)) from, or has
adopted any board resolutions at the request of, any Bank Regulatory Authority that currently relates to or restricts materially
the conduct of their business or that in any manner relates to their capital adequacy, credit policies or management (each, a “Regulatory
Agreement”), nor has the Company or any of its subsidiaries been advised by any Bank Regulatory Authority that it is considering
issuing or requesting any such Regulatory Agreement. The Bank is an insured depository institution and has received a Community
Reinvestment Act rating of “Satisfactory” or better. There is no unresolved violation, criticism or exception by any
Bank Regulatory Authority with respect to any report or statement relating to any examinations of the Company or any of its subsidiaries
which would reasonably be expected to have a Material Adverse Effect.
(xv)
No Restrictions; No Transactions. Except as disclosed in each of the General Disclosure
Package and the Prospectus, no subsidiary of the Company is currently prohibited, directly or indirectly, under any order of the
Federal Reserve (other than orders applicable to banks and their holding companies and their subsidiaries generally) or any other
federal or state bank regulatory authorities with jurisdiction over any subsidiary, under any applicable law, or under any agreement
or other instrument to which it is a party or is subject, from paying any dividends to the Company, from making any other distribution
on such subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary from the Company
or from transferring any of such subsidiary’s properties or assets to the Company or any other subsidiary of the Company.
The deposit accounts of the Bank are insured by the Deposit Insurance Fund to the fullest extent permitted by the laws and the
rules and regulations of the FDIC and no proceeding for the revocation or termination of such deposit insurance has been instituted
or is pending or, to the knowledge of the Company, is threatened.
(xvi)
Accuracy of Exhibits. There are no contracts or documents which are required to be
described in the Registration Statements, the General Disclosure Package, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so properly described and filed as required.
(xvii)
Possession of Intellectual Property. The Company and its subsidiaries own or possess,
or can acquire on reasonable terms, adequate patents, patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or confidential information, systems or procedures and excluding generally
commercially available “off the shelf” software programs licensed pursuant to shrink wrap or “click and accept”
licenses), trademarks, service marks, trade names or other intellectual property (collectively, “Intellectual Property”)
necessary to carry on the business now operated by them, except as would not reasonably be expected to have a Material Adverse
Effect, and neither the Company nor any of its subsidiaries has received any notice or has knowledge 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,
except for any infringement or conflict (if the subject of any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.
(xviii)
Absence of Further Requirements. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required
for the performance by the Company of its obligations hereunder, in connection with the offering, issuance or sale of the Securities
hereunder or the consummation of the transactions contemplated by this Agreement, except such as have been already obtained or
as may be required under the 1933 Act or the 1933 Act Regulations, the rules of Nasdaq, the securities laws of any state or non-U.S.
jurisdiction or the rules of FINRA.
(xix)
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
federal, state, local or foreign regulatory agencies or bodies necessary to conduct the business now operated by them, except where
the failure to so possess would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
the Company and its subsidiaries are in compliance with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except where the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect would not reasonably be expected to have a Material
Adverse Effect; and neither the Company nor any of its subsidiaries has received any notice of proceedings relating to the revocation
or modification of any such Governmental Licenses which, individually or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would reasonably be expected to have 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 so in compliance would not, individually or in the aggregate, reasonably
be expected to 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.
(xx)
Title to Property. The Company and its subsidiaries have good and marketable title
to all real property owned by the Company and its subsidiaries and good title to all other properties owned by them, in each case,
free and clear of all mortgages, pledges, liens, security interests, claims, restrictions or encumbrances of any kind except such
as (A) are described in the Registration Statements, the General Disclosure Package and the Prospectus and (B) would not reasonably
be expected to have a Material Adverse Effect; and all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company or any of its subsidiaries holds properties described
in the General Disclosure Package and the Prospectus, are in full force and effect, and neither the Company nor any subsidiary
has any notice of any material claim of any sort that has been asserted by anyone adverse to the rights of the Company or any subsidiary
under any of the leases or subleases mentioned above, or affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under any such lease or sublease.
(xxi)
Investment Company Act. The Company is not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as described in the General Disclosure Package and the
Prospectus will not be, an “investment company” or an entity “controlled” by an “investment company”
as such terms are defined in the Investment Company Act of 1940, as amended.
(xxii)
Environmental Laws. Except as described in the Registration Statements 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 statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or protection of human health, 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 the release or threatened release of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous Materials”)
or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with their requirements, and (C) there are no pending
or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters,
claims, liens, notices of noncompliance or violation, investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and there are no events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xxiii)
Taxes. The Company and each of its subsidiaries has (A) timely filed all material foreign,
federal, state and local tax returns, information returns, and similar reports that are required to be filed (taking into account
valid extensions), and all such returns and reports are true, correct and complete in all material respects, (B) paid in full all
taxes required to be paid by it and any other assessment, fine or penalty levied against it, except for any such tax, assessment,
fine or penalty that is currently being contested in good faith or as would not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect, and (C) established on the Company’s most recent consolidated balance sheet reserves
that are adequate for the payment of all taxes not yet due and payable, except as would not reasonably be expected to have a Material
Adverse Effect.
(xxiv)
Insurance. The Company and its subsidiaries carry, or are covered by, insurance in
such amounts and covering such risks as the Company reasonably believes are adequate for the conduct of the business of the Company
and its subsidiaries and the value of their properties and as are customary in the business in which the Company and its subsidiaries
are engaged; neither the Company nor any of its subsidiaries has been refused any insurance coverage sought or applied for; and
the Company has no reason to believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to continue its business at a cost that would not
reasonably be expected to have a Material Adverse Effect.
(xxv)
Statistical and Market Data. The statistical and market related data contained in the
Prospectus and Registration Statements are based on or derived from sources which the Company believes are reliable and accurate.
(xxvi)
Relationship. No relationship, direct or indirect, exists between or among the Company
or any of its subsidiaries, on the one hand, and the directors, officers, shareholders, customers or suppliers of the Company or
any of its subsidiaries, on the other, that is required by the 1933 Act or by the 1933 Act Regulations to be described in the Registration
Statements and/or the Prospectus and that is not so described.
(xxvii)
Internal Control Over Financial Reporting. The Company and its subsidiaries maintain
a system of internal control over financial reporting (as defined in Rule 13a-15(f) under the 1934 Act) sufficient to provide reasonable
assurance that (A) transactions are executed in accordance with management’s general or specific authorizations, (B) transactions
are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain asset accountability,
(C) access to assets is permitted only in accordance with 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. Since the end of the Company’s most recent audited fiscal year, there has been (I) no material weakness
in the Company’s internal control over financial reporting (whether or not remediated) and (II) 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.
(xxviii)
Disclosure Controls and Procedures. The Company and its subsidiaries maintain a system
of disclosure controls and procedures (as such term is defined in Rule 13a-15(e) under the 1934 Act), which (A) are designed to
ensure that information required to be disclosed by the Company in the reports that it files or submits under the 1934 Act is recorded,
processed, summarized and reported within the time periods specified in the Commission’s rules and forms and that material
information relating to the Company and its subsidiaries is made known to the Company’s principal executive officer and principal
financial officer by others within the Company and its subsidiaries to allow timely decisions regarding disclosure, and (B) are
effective in all material respects to perform the functions for which they were established. Based on the evaluation of the Company’s
and its subsidiaries disclosure controls and procedures described above, the Company is not aware of (I) any significant deficiency
in the design or operation of internal controls which could adversely affect the Company’s ability to record, process, summarize
and report financial data or any material weaknesses in internal controls or (II) any fraud, whether or not material, that involves
management or other employees who have a significant role in the Company’s internal controls. Since the most recent evaluation
of the Company’s disclosure controls and procedures described above, there have been no significant changes in internal controls
or in other factors that could significantly affect internal controls.
(xxix)
Compliance with the Sarbanes-Oxley Act. There is and has been no failure on the part
of the Company or any of the Company’s directors or officers, in their capacities as such, to comply in all material respects
with any provision of the Sarbanes-Oxley Act and the rules and regulations promulgated in connection therewith, including Section
402 related to loans and Sections 302 and 906 related to certifications.
(xxx)
Pending Procedures and Examinations. The Registration Statement is not the subject
of a pending proceeding or examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is not the subject of a pending
proceeding under Section 8A of the 1933 Act in connection with the offering of the Securities.
(xxxi)
Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the knowledge
of the Company, any director, officer, agent or employee of the Company or any of its subsidiaries has (A) used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity, (B) made any direct
or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds, (C) violated
or is in violation of any provision of the Foreign Corrupt Practices Act of 1977, or (D) made any bribe, rebate, payoff, influence
payment, kickback or other payment in violation of any applicable law, rule or regulation.
(xxxii)
Anti-Money Laundering Laws. Neither the Company nor any of its subsidiaries has violated
or is in violation of the applicable financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of applicable jurisdictions, or the rules and regulations thereunder
issued, administered or enforced by any governmental agency (collectively, the “Money Laundering Laws”) and no action,
suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.
(xxxiii)
OFAC. None of the Company, any subsidiary of the Company or, to the knowledge of the
Company, any director, officer, agent, employee or affiliate of the Company or any of its subsidiaries is (A) engaged in any services
(including financial services), transfers of goods, software, or technology, or any other business activity related to (1) any
country or territory (collectively, “Sanctioned Countries” and each, a “Sanctioned Country”), including
but not limited to Cuba, Iran, North Korea, Sudan, Syria and the Crimea region of Ukraine claimed by Russia, that is the subject
or target of sanctions administered or enforced by the United States 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”) (2) the government of any Sanctioned Country, (3) any person, entity
or organization located in, resident in, formed under the laws of, or owned or controlled by the government of, any Sanctioned
Country, or (4) any person, entity or organization made subject of any Sanctions, including, without limitation, the list of Specially
Designated Nationals maintained by OFAC, (B) engaged in any transfers of goods, technologies or services (including financial services)
that may assist the governments of Sanctioned Countries or facilitate money laundering or other activities proscribed by United
States law, (C) a person, entity or organization currently the subject of any Sanctions or (D) located, organized or resident in
any Sanctioned Country.
(xxxiv)
No Registration Rights. Except as disclosed in the Registration Statements, the General
Disclosure Package, and the Prospectus, no person has the right to require the Company or any of its subsidiaries to register any
securities for sale under the 1933 Act by reason of the filing of the Registration Statements with the Commission or the issuance
and sale of the Securities to be sold by the Company hereunder.
(xxxv)
No Stabilization or Manipulation. Neither the Company nor any of its subsidiaries,
nor any affiliates of the Company or its subsidiaries, has taken, directly or indirectly, any action designed to or that could
reasonably be expected to cause or result in any stabilization or manipulation of the price of the Securities.
(xxxvi)
No Unauthorized Use of Prospectus. The Company has not distributed and, prior to the
later to occur of (A) the Closing Time and (B) completion of the distribution of the Securities, will not distribute any prospectus
(as such term is defined in the 1933 Act and the 1933 Act Regulations) in connection with the offering and sale of the Securities
other than the Registration Statements, any preliminary prospectus, the Base Prospectuses, any Prospectus Supplement, the Statutory
Prospectus or the Prospectus or other materials, if any, permitted by the 1933 Act or by the 1933 Act Regulations and approved
by the Representative.
(xxxvii)
Forward-Looking Statements. No forward-looking statement (within the meaning of Section
27A of the 1933 Act and Section 21E of the 1934 Act) contained in the Registration Statement and the Prospectus has been made or
reaffirmed without a reasonable basis or has been disclosed other than in good faith.
(xxxviii)
Fees. Other than as contemplated by this Agreement, there is no broker, finder or other
party that is entitled to receive from the Company or any subsidiary any brokerage or finder’s fee or any other fee, commission
or payment as a result of the transactions contemplated by this Agreement.
(xxxix)
ERISA. The Company and each of the subsidiaries or their “ERISA Affiliates”
(as defined below) are in compliance in all material respects with all presently applicable provisions of the Employee Retirement
Income Security Act of 1974, as amended, including the regulations and published interpretations thereunder (collectively, “ERISA”);
no “reportable event” (as described in Section 4043(c) of ERISA) has occurred with respect to any “employee benefit
plan” (as defined in ERISA) sponsored, maintained, contributed to, or required to be sponsored, maintained or contributed
to, by the Company or any of the subsidiaries or ERISA Affiliates; the Company and each of the subsidiaries or their ERISA Affiliates
have not incurred and do not expect to incur liability under (i) Title IV of ERISA with respect to termination of, or withdrawal
from, any “employee benefit plan” or (ii) Sections 412 or 4971 of the United States Internal Revenue Code of 1986,
as amended, and the regulations and published interpretations thereunder (collectively the “Code”) or, except as would
not reasonably be expected to have a Material Adverse Effect, Sections 4975 or 4980B of the Code; and each “employee benefit
plan” sponsored, maintained, contributed to, or required to be sponsored, maintained, or contributed to, by the Company and
each of its subsidiaries or any of their ERISA Affiliates that is intended to be qualified under Section 401(a) of the Code has
received a determination, opinion or advisory letter from the Internal Revenue Service with respect to such qualification and,
to the knowledge of the Company, nothing has occurred, whether by action or by failure to act, which would reasonably be expected
to cause the loss of such qualification. “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 Code or Section 400(b) of ERISA of which
the Company or such subsidiary is a member.
(xl)
Derivative Instruments. Any and all material swaps, caps, floors, futures, forward
contracts, option agreements (other than stock options issued to the Company’s employees, directors, agents or consultants)
and other derivative financial instruments, contracts or arrangements, whether entered into for the account of the Company or one
of its subsidiaries or for the account of a customer of the Company or one of its subsidiaries, were entered into in the ordinary
course of business and in accordance, in all material respects, with applicable laws, rules, regulations and policies of all applicable
regulatory agencies and with counterparties believed by the Company to be financially responsible at the time. The Company and
each of its subsidiaries have duly performed in all material respects all of their obligations thereunder to the extent that such
obligations to perform have accrued, and there are no breaches, violations or defaults or allegations or assertions of such by
any party thereunder which would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(xli)
Off-Balance Sheet Transactions. There is no transaction, arrangement or other relationship
between the Company or any of its subsidiaries and an unconsolidated or other off-balance sheet entity that is required to be disclosed
in the Registration Statements, the General Disclosure Package and the Prospectus and is not so disclosed or that otherwise would
be reasonably expected to have a Material Adverse Effect.
(xlii)
Indenture. The Indenture has been duly authorized, executed and delivered by the Company
and, assuming the due authorization, execution and delivery of the Indenture by the Trustee, the Indenture will constitute a valid,
legal and binding agreement of the Company enforceable against the Company in accordance with its terms, except to the extent that
enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or other similar laws
now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity (regardless of whether
enforceability is considered in a proceeding at law or in equity). The Indenture has been, and at the Closing Time will be, duly
qualified under the 1939 Act. The Securities have been duly authorized for issuance and sale by the Company pursuant to this Agreement
and, at Closing Time, will have been duly executed by the Company and, when authenticated and delivered by the Trustee in the manner
provided for in the Indenture and issued and delivered by the Company against payment therefor as provided for in this Agreement,
will constitute valid, legal and binding obligations of the Company enforceable against the Company in accordance with their terms,
except to the extent that enforceability may be limited by (a) bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws now or hereafter in effect relating to creditors’ rights generally and (b) general principles of equity
(regardless of whether enforceability is considered in a proceeding at law or in equity); the Securities will be in the form contemplated
by, and will be entitled to the benefits of, the Indenture.
(xliii)
Information Technology Systems. (A) The Company is not aware of any security breach
or other compromise relating to the Company’s or its subsidiaries’ information technology and computer systems, networks,
hardware, software, data and databases (including the data and information of their respective customers, employees, suppliers,
vendors and any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems
and Data”), except for those that have been remedied without material cost or liability or that would not reasonably be expected
to have a Material Adverse Effect; (B) neither the Company nor any of its subsidiaries have been notified of, and have no knowledge
of any event or condition that would reasonably be expected to result in, any material security breach or other compromise to their
IT Systems and Data; and (C) the Company and its subsidiaries have implemented appropriate controls, policies, procedures and technological
safeguards to maintain and protect the integrity, continuous operation, redundancy and security of their IT Systems and Data reasonably
consistent with industry standards and practices, or as required by applicable regulatory standards. The Company and its subsidiaries
are presently in compliance with all applicable laws or statutes and all judgments, orders, rules and regulations of any court
or arbitrator or governmental or regulatory authority and internal policies relating to the privacy and security of IT Systems
and Data and to the reasonable protection of such IT Systems and Data from unauthorized use, access, misappropriation or modification
except as would not reasonably be expected to have a Material Adverse Effect.
(xliv)
Representations and Warranties Related to Chartwell Investment Partners, LLC and Chartwell
TSC Securities Corp. Chartwell Investment Partners, LLC (“Chartwell”) has been duly formed and is validly existing
as a limited liability company in good standing under the laws of the Commonwealth of Pennsylvania. Chartwell TSC Securities Corp.
(“CTSC”) has been duly organized and is validly existing as a corporation in good standing under the laws of the Commonwealth
of Pennsylvania. Each of Chartwell and CTSC has corporate power and authority to own, lease and operate its properties and to conduct
its business as described in the General Disclosure Package and the Prospectus; and each of Chartwell and CTSC is duly qualified
as a foreign limited liability company or corporation to transact business and is in good standing in each other jurisdiction in
which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not reasonably be expected to have a Material Adverse Effect. Neither
Chartwell nor CTSC has any subsidiaries.
(b)
Officer’s Certificates. Any certificate signed by any officer of the Company
or any of its subsidiaries delivered to the Underwriters or to counsel for the Underwriters shall be deemed a representation and
warranty by the Company to the Underwriters as to the matters covered thereby.
SECTION 2.
Sale and Delivery to Underwriters; Closing.
(a)
Securities. On the basis of the representations and warranties herein contained and
subject to the terms and conditions set forth herein, the Company agrees to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company the respective principal amount of the Securities set forth opposite
such Underwriter’s name on Schedule A at a purchase price equal to 98.5% of the principal amount thereof.
(b)
Payment. Payment of the purchase price for, and delivery of, the Securities shall be
made at the offices of Fenimore, Kay, Harrison & Ford, LLP, 812 San Antonio Street, Suite 600, Austin, Texas 78701, or at such
other place as shall be agreed upon by the Representative and the Company, at 10:00 a.m. (Eastern time) on the third (fourth,
if the pricing occurs after 4:30 p.m. (Eastern time) on any given day) business day after the date hereof, or such other time not
later than ten business days after such date as shall be agreed upon by the Representative and the Company (such time and date
of payment and delivery being herein called “Closing Time”). Payment shall be made to the Company by wire transfer
of immediately available funds to a bank account designated by the Company against delivery of one or more global notes representing
the Securities (collectively, the “Global Notes”) to the nominee of the Depository Trust Company (“DTC”)
through the facilities of DTC for the respective accounts of the Underwriters. The Company will cause the Global Notes to be made
available for inspection at least 24 hours prior to the Closing Time with respect thereto.
(c)
Stand-Off Agreement. Between the date of this Agreement and the Closing Time, neither
the Company nor any of its subsidiaries will, without the prior consent of the Representative, offer or sell, or enter into any
agreement to sell, any debt securities of the Company or its subsidiaries, other than the Securities. For the purposes of this
Section 2(c), “debt securities” does not include deposit obligations including certificates of deposit, borrowings
from the Federal Home Loan Bank, other federal funds, any existing lines of credit available to the Company and repurchase agreements.
SECTION 3.
Covenants of the Company. The Company covenants and agrees with each of the Underwriters
as follows:
(a)
Compliance with Securities Regulations and Commission Requests. Until the Closing Time,
the Company, subject to Section 3(b), will comply with the requirements of Rule 430A of the 1933 Act Regulations or Rule 430B,
as applicable, and will notify the Representative immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statements shall become effective, or any Prospectus Supplement or any amended Prospectus shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of any request by the Commission for any amendment
to the Registration Statements or any amendment or supplement to the Prospectus or for additional information, (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the Registration Statements or of any order preventing
or suspending the use of any preliminary prospectus, the Base Prospectuses, any Prospectus Supplement, or the Prospectus, or of
the suspension of the qualification of the Securities for offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration
Statement and (v) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering
of the Securities. The Company will effect the filings necessary pursuant to Rule 424(b) in the manner and within the time period
required by Rule 424(b) (without reliance on Rule 424(b)(8)) and will take such steps as it deems necessary to ascertain promptly
whether the form of prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event
that it was not, it will promptly file such prospectus. Until the Closing Time, the Company will make every reasonable effort 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 of Amendments. The Company will give the Representative notice of its intention
to file or prepare any amendment or supplement to the Registration Statements (including any filing under Rule 462(b)), any preliminary
prospectus, the Base Prospectuses, any Prospectus Supplement, or the Prospectus, whether pursuant to the 1933 Act, the 1934 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 object.
(c)
The Registration Statements initially became effective within three years of the date hereof.
If, immediately prior to the third anniversary of the initial effective date of either of the Registration Statements relating
to the Securities, any of the Securities remain unsold by the Representative, the Company will prior to that third anniversary
file, if it has not already done so, a new registration statement relating to the Securities, in a form satisfactory to the Representative,
will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary,
and will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as
contemplated in the expired registration statement relating to the Securities. References herein to the Registration Statements
relating to the Securities shall include such new registration statement.
(d)
Delivery of Registration Statement. The Company has furnished or will deliver to the
Representative and counsel for the Underwriters, without charge, signed copies of the Registration Statements as originally filed
and of 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, conformed copies of the Registration Statements as originally filed and of each
amendment thereto (without exhibits) for each of the Underwriters. The copies of the Registration Statements and each amendment
thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(e)
Delivery of Prospectuses. The Company has delivered to each Underwriter, without charge,
as many copies of the Base Prospectuses and any Prospectus Supplement as such Underwriter reasonably requested, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter,
without charge, during the period when the Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such number
of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request. The Prospectus and any amendments
or supplements thereto furnished to each Underwriter will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(f)
Continued Compliance with Securities Laws. The Company will comply with the 1933 Act
and the 1933 Act Regulations and the 1934 Act and the 1934 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Registration Statement, the General Disclosure Package and the Prospectus.
If at any time when a prospectus relating to the Securities is (or, but for the exception afforded by Rule 172 of the 1933 Act
Regulations, would be) required by the 1933 Act to be delivered in connection with sales of the Securities ending no later than
nine months from the date hereof (the “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 (i) amend the Registration Statements
in order that the Registration Statements will not include an 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, (ii) amend or supplement the Prospectus
in order that the Prospectus will not include any untrue statements of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the circumstances existing at the time it is delivered to
a purchaser, or (iii) if it shall be necessary, in the opinion of such counsel, at any such time to amend the Registration Statements
or amend or supplement the Prospectus in order to comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly (A) give the Representative written notice of such event or condition, (B) prepare and file with the Commission,
subject to Section 3(b) of this Agreement, such amendment or supplement as may be necessary to correct such statement or omission
or to make the Registration Statements or the Prospectus comply with such requirements and use its best efforts to have any amendment
to the Registration Statements declared effective by the Commission as soon as possible, and (C) the Company will furnish to each
Underwriter such number of copies of such amendment or supplement as such Underwriter may reasonably request. If at any time following
issuance of an Issuer-Represented Free Writing Prospectus there occurred or occurs an event or development as a result of which
such Issuer-Represented Free Writing Prospectus conflicted or would conflict with the information contained in the Registration
Statements or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading,
the Company has promptly notified or will promptly notify the Representative and has promptly amended or will promptly amend or
supplement, at its own expense, such Issuer-Represented Free Writing Prospectus to eliminate or correct such conflict, untrue statement
or omission.
(g)
Blue Sky Qualifications. The Company will use its best efforts, in cooperation with
the Underwriters, to qualify the Securities for offering and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representative may designate and to maintain such qualifications in effect for the Delivery
Period; provided, that the Company shall not be obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it is not so qualified or to subject itself to taxation
in respect of doing business in any jurisdiction in which it is not otherwise so subject.
(h)
Rule 158. The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(i)
Use of Proceeds. The Company will use the net proceeds received by it from the sale
of the Securities in the manner specified in the Prospectus under “Use of Proceeds.”
(j)
Reporting Requirements. The Company, during the Delivery Period, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
(k)
Issuer Free Writing Prospectus. The Company represents and agrees that it has not made
and will not make, unless it obtains the prior consent of the Representative, any offer relating to the Securities that would constitute
an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such free writing prospectus consented
to by the Representative is hereinafter referred to as a “Permitted Issuer Free Writing Prospectus.” The Company represents
that it has treated or agrees that it will treat each Permitted Issuer Free Writing Prospectus as an “issuer free writing
prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any
Permitted Issuer Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.
Any Permitted Issuer Free Writing Prospectus shall be deemed to be an Issuer-Represented Free Writing Prospectus for purposes of
this Agreement.
(l)
DTC. The Company will cooperate with the Representative and use its best efforts to
permit the Securities to be eligible for clearance, settlement and trading in book-entry form through the facilities of DTC, if
required.
(m)
Term Sheet. The Company will prepare the Term Sheet, containing solely a description
of the final terms of the Securities and the offering thereof, and after affording the Representative the opportunity to comment
thereon, file the Term Sheet with the Commission pursuant to Rule 433(d) within the time required by such Rule.
SECTION 4.
Payment of Expenses.
(a)
Expenses. The Company will pay or cause to be paid all expenses incident to the performance
of its obligations under this Agreement, including (i) the preparation, printing and filing of the Registration Statements
(including financial statements and exhibits) as originally filed and of each amendment thereto, (ii) the preparation, printing
and delivery to the Underwriters of this Agreement, (iii) the preparation, issuance and delivery of one or more global notes
representing the Securities to the Underwriters, including any transfer taxes and any stamp or other duties payable upon the sale,
issuance or delivery of the Securities to the Underwriters, (iv) the fees and disbursements of the Company’s counsel,
accountants and other advisors, (v) filing fees and disbursements, if any, relating to the qualification of the Securities
under securities laws in accordance with the provisions of Section 3(g) hereof and in connection with the preparation, printing
and delivery to the Underwriters of the Blue Sky Survey and any supplement thereto and the fees and expenses of making the Securities
eligible for clearance, settlement and trading through the facilities of DTC, if required, (vi) the printing and delivery
to the Underwriters of copies of the Base Prospectuses, any Prospectus Supplement, any preliminary prospectus supplement, any Permitted
Issuer Free Writing Prospectus and the Prospectus, and any amendments or supplements thereto (including any costs associated with
electronic delivery of these materials), (vii) the fees and expenses of any transfer agent or registrar for the Securities,
(viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken
in connection with the marketing of the Securities, including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations, travel and
lodging expenses of the Representative and officers and employees of the Company and any such consultants, and (ix) the reasonable
filing fees and disbursements, if any, in connection with determining the compliance of the terms of the sale of the Securities
with the rules and regulations of FINRA.
(b)
Termination of Agreement. If this Agreement is terminated by the Representative in
accordance with the provisions of Section 5 or Section 9(a) hereof, the Company shall reimburse the Underwriters for
all of their out-of-pocket expenses, including the reasonable fees and disbursements of counsel for the Underwriters.
SECTION 5.
Conditions of the Underwriters’ Obligations. The obligations of the Underwriters
hereunder are subject to the accuracy of the representations and warranties of the Company contained in Section 1 hereof,
including those contained in certificates of any officer of the Company or any subsidiary of the Company delivered pursuant to
the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following
further conditions:
(a)
Effectiveness of Registration Statements. The Registration Statements, including any
Rule 462(b) Registration Statement, shall have become effective and, at Closing Time, (i) no stop order suspending the effectiveness
of the Registration Statements shall have been issued under the 1933 Act or proceedings therefor initiated or threatened by the
Commission, (ii) any request on the part of the Commission for additional information shall have been complied with, and (iii)
no order preventing or suspending the use of any preliminary prospectus or the Prospectus or any amendment or supplement thereto
has been issued and no proceedings for any of those purposes have been instituted or are pending or, to the Company’s knowledge,
contemplated. Each preliminary prospectus, each Issuer Free Writing Prospectus and the Prospectus containing the Rule 430 Information
shall have been filed with the Commission in the manner required by Rule 424(b) (without reliance on Rule 424(b)(8)) and Rule 433,
as applicable, within the time period prescribed by, and in compliance with, the 1933 Act Regulations (or a post-effective amendment
providing such information shall have been filed and declared effective in accordance with the requirements of Rule 430B).
(b)
Opinion of Counsel for Company. At the Closing Time, the Representative shall have
received the favorable opinion, addressed to the Representative and dated as of Closing Time, of Covington & Burling LLP, counsel
for the Company, in form and substance satisfactory to counsel for the Underwriters.
(c)
Opinion of Counsel for Underwriters. At the Closing Time, the Representative shall
have received the favorable opinion, addressed to each of the Underwriters and dated as of Closing Time, of Fenimore, Kay, Harrison
& Ford, LLP, counsel for the Underwriters, in form and substance satisfactory to the Representative.
(d)
Officers’ Certificate. At the Closing Time, the Representative shall have received
a certificate of the President or a Vice President of the Company and of the chief financial or chief accounting officer of the
Company, dated as of Closing Time, to the effect that (i) there has been no Material Adverse Effect, (ii) the representations
and warranties in Section 1 hereof are true and correct with the same force and effect as though expressly made at and as
of Closing Time, (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied at or prior to Closing Time, (iv) none of the occurrences set forth in Section 5(k) shall have occurred, and (iv) no
stop order suspending the effectiveness of the Registration Statements has been issued and no proceedings for that purpose have
been instituted or are pending or, to their knowledge, are contemplated by the Commission.
(e)
Accountants’ Comfort Letter. At the time of the execution of this Agreement,
the Representative shall have received from KPMG LLP, with respect to the Company, a letter dated such date, in form and substance
satisfactory to the Representative, containing statements and information of the type ordinarily included in accountants’
“comfort letters” to the Underwriters with respect to the financial statements and certain financial information contained
in the Registration Statements and the Prospectus.
(f)
Bring-down Comfort Letter. At the Closing Time the Representative shall have received
from KPMG LLP, with respect to the Company, a letter, dated as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (e) of this Section, except that the specified date for the carrying out
of procedures referred to shall be a date not more than three business days prior to Closing Time.
(g)
Certificate of Chief Financial Officer. At the time of the execution of this Agreement
and at the Closing Time, the Representative shall have received a certificate executed by the Chief Financial Officer of the Company,
in form and substance reasonably satisfactory to the Representative, with respect to certain financial data contained in the Registration
Statements and the Prospectus.
(h)
Listing. The voting common stock, no par value, of the Company (“Common Stock”)
is registered pursuant to Section 12(b) of the Exchange Act and is listed on Nasdaq, and the Company has taken no action designed
to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common
Stock from Nasdaq, nor has the Company received any notification that the Commission or Nasdaq is contemplating terminating such
registration or listing.
(i)
No Objection. If a filing with FINRA is required, FINRA shall have raised no objection
with respect to the fairness and reasonableness of the underwriting terms and arrangements relating to the offering of the Securities.
(j)
Delivery of Prospectus. The Company shall have complied with the provisions hereof
with respect to the furnishing of prospectuses, in electronic or printed format, on the New York business day next succeeding the
date of this Agreement.
(k)
No Important Changes. Since the earlier of (x) the date of this Agreement, or (y) the
respective dates of which information is given in the Registration Statements, the General Disclosure Package or the Prospectus,
(i) there shall not have occurred any Material Adverse Effect, and (ii) there shall not have been any downgrade or withdrawal of
the rating of any debt securities or preferred securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” (as defined for purposes of Section 3(a)(62) of the 1934 Act) or any notice given of
any intended or potential downgrade or withdrawal of any such rating or of a possible change in any such rating that does not indicate
the direction of the possible change.
(l)
No Termination Event. On or after the date hereof, there shall not have occurred any
of the events, circumstances or occurrences set forth in Section 9(a).
(m)
Additional Documents. At Closing Time counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose of enabling them to pass upon the issuance and sale
of the Securities as herein contemplated, or in order to evidence the accuracy of any of the representations or warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance
and sale of the Securities as herein contemplated shall be satisfactory in form and substance to the Representative and counsel
for the Underwriters.
(n)
Termination of Agreement. If any condition specified in this Section 5 shall not have
been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representative by notice to the Company
at any time at or prior to Closing Time, as the case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6.
Indemnification.
(a)
Indemnification of Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates (as such term is defined in rule 501(b) under the 1933 Act) (“Affiliates”), its selling
agents, directors, officers and each person, if any, who controls any Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act to the extent and in the manner set forth in clauses (i), (ii) and (iii) below:
(i)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a material fact contained in the Registration Statements (or any amendment
thereto), including the Rule 430 Information, if applicable, or the omission or alleged omission therefrom of a material fact required
to be stated therein or necessary to make the statements therein not misleading or arising out of any untrue statement or alleged
untrue statement of a material fact included in any preliminary prospectus, the Base Prospectuses, any Prospectus Supplement, the
Prospectus, the General Disclosure Package or any Issuer-Represented Free Writing Prospectus or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(ii)
against any and all loss, liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such settlement is effected with the written
consent of the Company; and
(iii)
against any and all expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen by the Representative), reasonably incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon
any such untrue statement or omission, or any such alleged untrue statement or omission to the extent that any such expense is
not paid under (i) or (ii) above;
provided, that this indemnity agreement shall
not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in the Registration Statements (or any amendment thereto), including the Rule 430 Information,
if applicable, or in any preliminary prospectus, any Issuer-Represented Free Writing Prospectus, the General Disclosure Package
or the Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(b)
Indemnification of Company, Directors and Officers. Each Underwriter, severally and
not jointly, agrees to indemnify and hold harmless the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements or omissions,
made in the Registration Statements (or any amendment thereto), including the Rule 430 Information, if applicable, or any preliminary
prospectus, the Base Prospectuses, any Prospectus Supplement, the Prospectus, the General Disclosure Package or any Issuer-Represented
Free Writing Prospectus (or any amendment or supplement thereto) in reliance upon and in conformity with the Underwriter Information.
(c)
Actions against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any loss, liability, claim, damage or expense incurred, or any
investigation, proceeding or action by any governmental agency or body, regulatory authority or other entity, commenced or threatened,
in respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party shall not relieve such indemnifying
party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of this Section 6. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be selected by the Representative, and, in the case of
parties indemnified pursuant to Section 6(b) above, counsel to the indemnified parties shall be selected by the Company. An indemnifying
party may participate at its own expense in the defense of any such action; provided, that counsel to the indemnifying party shall
not (except with the prior written consent of the indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one counsel (in addition to any local counsel) separate from
their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation,
or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect
of which indemnification or contribution could be sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release
of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.
(d)
Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 60 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 45 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request
prior to the date of such settlement.
SECTION 7.
Contribution. If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages
or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities,
claims, damages and expenses incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided by clause (i) is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault
of the Company, on the one hand, and of the Underwriters, on the other hand, in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total net proceeds from the offering
of the Securities pursuant to this Agreement (before deducting expenses) received by the Company, on the one hand, and the total
underwriting discount and commissions received by the Underwriters, on the other hand, in each case as set forth on the cover of
the Prospectus, bear to the aggregate public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault
of the Company, on the one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other things,
whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and
each Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which
does not take account of the equitable considerations referred to above in this Section 7. The aggregate amount of losses, liabilities,
claims, damages and expenses incurred by an indemnified party and referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever
based upon any such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding
the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the underwriting discount
received by such Underwriter in connection with the Securities underwritten by it and distributed to the public.
No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 7 to contribute
are several in proportion to their respective underwriting obligations and not joint.
For purposes of
this Section 7, each person, if any, who controls an Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act and such Underwriter’s Affiliates and selling agents shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights
to contribution as the Company.
SECTION 8.
Representations, Warranties and Agreements to Survive Delivery. The indemnity and contribution
provisions contained in Sections 6 and 7 hereof, and all representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or any of its subsidiaries submitted pursuant hereto, shall remain operative and
in full force and effect, regardless of any (i) investigation made by or on behalf of any Underwriter or its Affiliates or selling
agents, any person controlling any Underwriter, its officers or directors, or by or on behalf of the Company, and (ii) delivery
of and payment for the Securities.
SECTION 9.
Termination of Agreement.
(a)
Termination; General. The Representative may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (i) if there has been, since the time of execution of this Agreement
or since the respective dates as of which information is given in the Base Prospectuses, any Prospectus Supplement, the General
Disclosure Package or the Prospectus, any Material Adverse Effect; (ii) if there has occurred any material adverse change
in the financial markets in the United States or the international financial markets, any outbreak of hostilities or escalation
thereof, pandemics or other public health emergencies (including the COVID-19 outbreak) or other calamity or crisis or any change
or development involving a prospective change in national or international political, financial or economic conditions, including,
without limitation, as a result of terrorist activities, in each case the effect of which is such as to make it, in the judgment
of the Representative, impracticable or inadvisable to market the Securities or to enforce contracts for the sale of the Securities,
(iii) if trading in any securities of the Company has been suspended or materially limited by the Commission or Nasdaq, or
if trading generally on the New York Stock Exchange or Nasdaq has been suspended or materially limited, or minimum or maximum prices
for trading have been fixed, or maximum ranges for prices have been required, by any of said exchanges or by order of the Commission,
FINRA or any other governmental authority, (iv) a material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States or with respect to Clearstream or Euroclear Systems in Europe, or (v) if a banking moratorium
has been declared by federal, New York or Pennsylvania authorities.
(b)
Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10.
Notices. All notices and other communications hereunder shall be in writing and shall
be deemed to have been duly given if mailed or transmitted by any standard form of telecommunication. Notices to the Underwriters
shall be directed to the Representative at Stephens Inc., 111 Center Street, Little Rock, Arkansas 72201, Attention: Bill Keisler
(fax no. 501.377.2677), with a copy (which shall not constitute notice) to Fenimore, Kay, Harrison, & Ford, LLP, 812 San Antonio
Street, Suite 600, Austin, Texas 78701, Attention: Chet Fenimore (fax no. 512.583.5940). Notices to the Company shall be directed
to it at One Oxford Centre, Suite 2700, Grant Street, Pittsburgh, Pennsylvania 15219, Attention: James F. Getz, Chairman, President
and Chief Executive Officer, with a copy (which shall not constitute notice) to Covington & Burling LLP, One CityCenter, 850
Tenth Street, N.W., Washington, D.C. 20001, Attention: Christopher DeCresce.
SECTION 11.
Parties. This Agreement shall each inure to the benefit of and be binding upon the
Underwriters, the Company and their respective successors. Nothing expressed or mentioned in this Agreement is intended or shall
be construed to give any person, firm or corporation, other than the Underwriters, the Company and their respective successors
and the controlling persons and officers and directors referred to in Sections 6 and 7 and their heirs and legal representatives,
any legal or equitable right, remedy or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of the Underwriters, the Company
and their respective successors, and said controlling persons and officers and directors and their heirs and legal representatives,
and for the benefit of no other person, firm or entity. No purchaser of Securities from any Underwriter shall be deemed to be a
successor by reason merely of such purchase.
SECTION 12.
No Fiduciaries. The Company acknowledges and agrees that (a) the purchase and sale
of the Securities pursuant to this Agreement, including the determination of the interest rate, terms and public offering price
of the Securities and any related discounts and commissions, is an arm’s-length commercial transaction between the Company,
on the one hand, and the Underwriters, on the other hand, (b) in connection with the offering of the Securities contemplated hereby
and the process leading to such transaction, each Underwriter is and has been acting solely as a principal and is not the agent
or fiduciary of the Company or its shareholders, creditors, employees or any other third party, (c) no Underwriter has assumed,
and no Underwriter will assume, an advisory or fiduciary responsibility in favor of the Company with respect to the offering contemplated
hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company
on other matters) and no Underwriter has any obligation to the Company with respect to the offering of the Securities contemplated
hereby except the obligations expressly set forth in this Agreement, (d) each Underwriter and its Affiliates may be engaged
in a broad range of transactions that involve interests that differ from those of the Company, and (e) no Underwriter has provided
any legal, accounting, regulatory or tax advice with respect to the offering of the Securities contemplated hereby and the Company
has consulted its own legal, accounting, regulatory and tax advisors to the extent it deemed appropriate.
SECTION 13.
GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD FOR ITS CONFLICTS OF LAWS PRINCIPLES. EXCEPT AS OTHERWISE SET FORTH HEREIN,
SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 14.
General Provisions. This Agreement constitutes the entire agreement of the parties
to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two or more counterparts, each one of which shall
be an original, but all of which together shall constitute one and the same instrument. The exchange of copies of this Agreement
and of signature pages by facsimile or other electronic means shall constitute effective execution and delivery of this Agreement
by the parties hereto and may be used in lieu of the original signature pages to this Agreement for all purposes. This Agreement
may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may
be waived unless waived in writing by each party whom the condition is meant to benefit. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
[Signature page follows]
If the foregoing is in
accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement among the Underwriters and the Company in accordance with
its terms.
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Very truly yours,
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TRISTATE CAPITAL HOLDINGS, INC.
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By: /s/ James F. Getz
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Name: James F. Getz
Title: Chairman, President and Chief Executive Officer
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CONFIRMED AND ACCEPTED,
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as of the date first above written:
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STEPHENS Inc.
For itself and as Representative of the
other Underwriter named in Schedule A hereto
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By: /s/ Jay Brogdon
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Name: Jay Brogdon
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Title: Managing Director
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SCHEDULE A
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Name of Underwriters
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Aggregate Dollar
Amount of Securities
to be Purchased
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Stephens Inc.
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$
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42,000,000
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Raymond James Financial, Inc.
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$
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18,000,000
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Total
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$
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60,000,000
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Schedule A
SCHEDULE B
Issuer-Represented General Free Writing Prospectus
1. Investor Presentation dated May 5, 2020.
2. Term sheet dated May 6, 2020.
Schedule B
SCHEDULE C
TriState Capital Holdings, Inc.
$60,000,000
5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030
Term Sheet
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Issuer:
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TriState Capital Holdings, Inc., a Pennsylvania corporation (the “Company”)
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Securities Offered:
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5.75% Fixed-to-Floating Rate Subordinated Notes due 2030 (the “Notes”)
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Aggregate Principal Amount:
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$60 Million
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Rating:
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Kroll Bond Rating Agency: BBB
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A rating reflects only the view of a rating agency, and it is not a recommendation to buy, sell or hold the Notes. Any rating can be revised upward or downward or withdrawn at any time by a rating agency if such rating agency decides that circumstances warrant that change. Each rating should be evaluated independently of any other rating.
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Trade Date:
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May 6, 2020
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Settlement Date:
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May 11, 2020 (t + 3)
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Final Maturity (if not previously redeemed):
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May 15, 2030
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Interest Rate:
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From and including the original issue date to, but excluding, May 15, 2025, a fixed per annum rate of 5.75%, payable semi-annually in arrears.
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From and including May 15, 2025, through, but excluding, the maturity date or the date of earlier redemption, a floating per annum rate equal to Three-Month LIBOR (as defined in the prospectus supplement under “Description of the Notes—Interest Rate and Interest Payment Dates”), plus 536 basis points for each quarterly interest period during the floating rate period, payable quarterly in arrears.
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Issue Price to Investors:
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100%
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Interest Payment Dates:
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Interest on the Notes will be payable on May 15 and November 15 of each year through and including May 15, 2025, and thereafter on February 15, May 15, August 15, November 15 of each year to the maturity date or earlier redemption. The first interest payment will be made on November 15, 2020.
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Schedule C
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Day Count Convention:
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30/360 to but excluding May 15, 2025, and, thereafter, a 360-day year and the number of days actually elapsed.
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Optional Redemption:
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The Company may, at its option, beginning with the Interest Payment Date of May 15, 2025 and on any scheduled Interest Payment Date thereafter, 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 to, but excluding, the date of redemption.
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Special Event Redemption:
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The Notes may not be redeemed prior to May 15, 2025, except that the Company may redeem the Notes at any time, at its option, in whole but not in part, subject to obtaining any required regulatory approvals, if (i) a change or prospective change in law occurs that could prevent the Company from deducting interest payable on the Notes for U.S. federal income tax purposes, (ii) a subsequent event occurs that precludes the Notes from being recognized as Tier 2 capital for regulatory capital purposes, or (iii) the Company is required to register as an investment company under the Investment Company Act of 1940, as amended, in each case, at a redemption price equal to 100% of the principal amount of the Notes plus any accrued and unpaid interest through, but excluding, the redemption date. For more information, see “Description of the Notes—Optional Redemption and Redemption Upon Special Events” in the preliminary prospectus supplement dated May 5, 2020.
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Denomination:
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$1,000 denominations and integral multiples of $1,000.
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Listing and Trading Markets:
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The Company does not intend to list the Notes on any securities exchange or to have the Notes quoted on a quotation system. Currently there is no public market for the Notes and there can be no assurances that any public market for the Notes will develop.
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Underwriting Discount:
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1.5% of the principal amount
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Proceeds to the Company (after underwriting discount, but before expenses):
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$59,100,000
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Use of Proceeds:
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The Company expects to use the net proceeds from the sale of the Notes for general corporate purposes, which may include working capital, repurchasing shares of its common stock, providing capital to support the organic growth of TriState Capital Bank or funding the opportunistic acquisition of similar or complementary financial service organizations and may use certain of the net proceeds to repay outstanding indebtedness.
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CUSIP / ISIN:
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89678F AA8 / US89678FAA84
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Joint Book Running Managers:
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Stephens Inc. and Raymond James & Associates, Inc.
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The Company has filed shelf registration statements
(File No. 333-235713 and File No. 333-222074) (including base prospectuses) and a related preliminary prospectus supplement dated
May 5, 2020 (the “Preliminary Prospectus Supplement”) with the U.S. Securities and Exchange Commission (the “SEC”)
for the offering to which this communication relates. Before you invest, you should read the prospectuses in those registration
statements, the related preliminary prospectus supplement and any other documents that the Company has filed with the SEC for more
information about the Company and the offering. You may get these documents for free by visiting EDGAR on the SEC website at www.sec.gov.
Alternatively, the Company, the underwriter or any dealer participating in the offering will arrange to send you the prospectuses
and the related preliminary prospectus supplement if you request it by calling Stephens Inc. toll-free at (800) 643-9691.
We expect that delivery of the Notes will be
made against payment therefor on or about the third business day following the date of pricing of the Notes (this settlement cycle
being referred to as “T+3”). Accordingly, purchasers who wish to trade the Notes on the date of pricing or the next
business day will be required, by virtue of the fact that the Notes initially will settle in T+3, to specify an alternate settlement
cycle at the time of any such trade to prevent a failed settlement. Purchasers of the Notes who wish to trade their Notes on the
date of pricing or the next business day should consult their own advisor.
Capitalized terms used but not defined in this
Term Sheet have the meanings given to them in the Preliminary Prospectus Supplement. This Term Sheet is qualified in its entirety
by reference to the Preliminary Prospectus Supplement. The information in this Term Sheet supplements the Preliminary Prospectus
Supplement and supersedes the information in the Preliminary Prospectus Supplement to the extent it is inconsistent with the information
in the Preliminary Prospectus Supplement. Other information (including other financial information) presented in the Preliminary
Prospectus Supplement is deemed to have changed to the extent affected by the information contained herein.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR
BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY
GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
SCHEDULE D
Subsidiaries of the Company
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2.
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Chartwell Investment Partners, LLC
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3.
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Chartwell TSC Securities Corp.
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Schedule D
Exhibit 4.1
TRISTATE CAPITAL HOLDINGS, INC.,
AS ISSUER,
AND
U.S. BANK NATIONAL ASSOCIATION,
AS TRUSTEE,
SUBORDINATED INDENTURE
DATED AS OF MAY 11, 2020
SUBORDINATED DEBT SECURITIES
CROSS-REFERENCE
TABLE
Reconciliation and tie between the Trust
Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the Indenture dated as of May 11, 2020.
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SECTION OF Trust Indenture Act
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SECTION OF INDENTURE
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310(a)(1) and (2)
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7.09
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310(a)(3) and (4)
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Not applicable
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310(a)(5)
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7.09
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310(b)
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7.08 and 7.10
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310(c)
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Not applicable
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311(a) and (b)
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7.13
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311(c)
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Not applicable
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312(a)
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5.01 and 5.02(a)
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312(b) and (c)
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5.02(b)
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313(a)
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5.04(a)
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313(b)
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5.04(b)
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313(c)
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5.04(b)
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313(d)
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5.04(c)
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314(a)
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5.03
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314(b)
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Not applicable
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314(c)(1) and (2)
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14.04(i)
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314(c)(3)
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Not applicable
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314(d)
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Not applicable
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314(e)
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15.05
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314(f)
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Not applicable
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315(a), (c) and (d)
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7.01
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315(b)
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7.14
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315(e)
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6.14
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316(a)(1)
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6.12
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316(a)(2)
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Omitted
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316(a) last sentence
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8.04
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316(b)
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6.08
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316(c)
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8.06
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317(a)
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6.03 and 6.04
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317(b)
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4.03(a)
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318(a)
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15.07
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Note: This reconciliation and tie shall
not, for any purpose, be deemed to be a part of the Indenture.
Attention should also be directed to Section
318(c) of the Trust Indenture Act, which provides that the provisions of Sections 310 to and including Section 317 of the Trust
Indenture Act are a part of and govern every qualified indenture, whether or not physically contained therein.
TABLE OF CONTENTS
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Page
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Article 1 DEFINITIONS
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2
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SECTION 1.01. Definitions.
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2
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Article 2 ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
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6
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SECTION 2.01. Amount Unlimited; Issuable in Series.
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6
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SECTION 2.02. Form of Trustee’s Certificate of Authentication.
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6
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SECTION 2.03. Form of Securities Generally; Establishment of Terms of Series.
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6
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SECTION 2.04. Securities in Global Form.
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9
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SECTION 2.05. Denominations; Record Date; Payment of Interest.
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9
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SECTION 2.06. Execution, Authentication, Delivery and Dating of Securities.
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10
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SECTION 2.07. Exchange and Registration of Transfer of Securities.
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11
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SECTION 2.08. Temporary Securities.
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13
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SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities and Coupons.
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14
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SECTION 2.10. Cancellation.
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15
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SECTION 2.11. Book Entry Only System.
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15
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Article 3 REDEMPTION OF SECURITIES
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15
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SECTION 3.01. Redemption of Securities, Applicability of Section.
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15
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SECTION 3.02. Notice of Redemption, Selection of Securities.
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15
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SECTION 3.03. Payment of Securities Called for Redemption.
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16
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SECTION 3.04. Redemption Suspended During Event of Default.
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17
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Article 4 PARTICULAR COVENANTS OF THE COMPANY
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17
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SECTION 4.01. Payment of Principal, Premium and Interest.
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17
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SECTION 4.02. Offices for Notices and Payments, etc.
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18
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SECTION 4.03. Provisions as to Paying Agent.
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19
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SECTION 4.04. Statement as to Compliance.
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19
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SECTION 4.05. Corporate Existence.
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20
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SECTION 4.06. Waiver of Covenants.
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20
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Article 5 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
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20
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SECTION 5.01. Securityholder Lists.
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20
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SECTION 5.02. Preservation and Disclosure of Lists.
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20
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SECTION 5.03. Reports by the Company.
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20
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SECTION 5.04. Reports by the Trustee.
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21
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Article 6 REMEDIES
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21
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SECTION 6.01. Events of Default; Acceleration of Maturity.
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21
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SECTION 6.02. Rescission and Annulment.
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22
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SECTION 6.03. Collection of Indebtedness and Suits for Enforcement by Trustee.
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23
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SECTION 6.04. Trustee May File Proofs of Claim.
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23
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SECTION 6.05. Trustee May Enforce Claims Without Possession of Securities or Coupons.
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24
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SECTION 6.06. Application of Money Collected.
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24
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THIS INDENTURE, dated as of May 11, 2020,
between TriState Capital Holdings, Inc., a corporation duly organized and existing under the laws of the State of Pennsylvania
(the “Company”), and U.S. Bank National Association, as trustee (the “Trustee,” which term shall include
any successor trustee appointed pursuant to Article 7 of this Indenture).
WHEREAS, the Company deems it necessary
to issue from time to time for its lawful purposes securities (the “Securities”) evidencing its indebtedness and has
duly authorized the execution and delivery of this Indenture to provide for the issuance of the Securities in one or more series,
unlimited as to principal amount, to bear such rates of interest, to mature at such time or times, and to have such other provisions
as shall be fixed as hereinafter provided; and
WHEREAS, the Company represents that all
acts and things necessary to constitute these presents a valid indenture and agreement according to its terms have been done and
performed, and the execution of this Indenture has in all respects been duly authorized, and the Company, in the exercise of legal
right and power in it vested, is executing this Indenture;
NOW, THEREFORE:
In order to declare the terms and conditions
upon which the Securities are authenticated, issued and received, and in consideration of the premises, of the purchase and acceptance
of the Securities by the holders thereof and of the sum of One Dollar to it duly paid by the Trustee at the execution of these
presents, the receipt whereof is hereby acknowledged, the Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders from time to time of the Securities, as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.
The terms defined in this Section (except
as herein otherwise expressly provided or unless the context otherwise requires) for all purposes of this Indenture and of any
supplemental indenture shall have the respective meanings specified in this Section. All other terms used in this Indenture that
are defined in the Trust Indenture Act or that are by reference therein defined in the Securities Act shall have the meanings (except
as herein otherwise expressly provided or unless the context otherwise requires) assigned to such terms in the Trust Indenture
Act or in the Securities Act, as applicable, in each case as in force at the date of this Indenture as originally executed. All
accounting terms used herein and not expressly defined shall have the meanings assigned to such terms in accordance with United
States generally accepted accounting principles, and the term “generally accepted accounting principles” means such
accounting principles as are generally accepted at the time of any computation. The words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any particular Article,
Section or other subdivision. The terms defined in this Article have the meanings assigned to them in this Article and include
the plural as well as the singular.
“Additional Amounts” shall
mean any additional amounts to be paid by the Company in respect of Securities of a series, as may be specified pursuant to Section
2.03(b) hereof and in such Security and under the circumstances specified therein, in respect of specified taxes, assessments or
other governmental charges imposed on certain holders who are United States Aliens.
“Authorized Newspaper” shall
mean a newspaper (which, in the case of the United Kingdom, will, if practicable, be the Financial Times (London Edition)
and, in the case of Luxembourg, will, if practicable, be the Luxemburger Wort) of general circulation in the place of publication,
published in an official language of the country of publication and customarily published at least once a day for at least five
days in each calendar week. Whenever successive weekly publications in an Authorized Newspaper are authorized or required hereunder,
they may be made (unless otherwise provided herein) on the same or different days of the week and in the same or different Authorized
Newspapers.
“Authorized Officer” shall
have the meaning set forth in Section 3.02 hereof.
“Bearer Security” shall mean
any Security established pursuant to Section 2.01 and Section 2.03 hereof which is payable to the bearer (including, without limitation,
any Security in temporary or permanent global bearer form) and title to which passes by delivery only, but does not include any
coupons.
“Board of Directors” or “Board”
shall mean the Board of Directors of the Company or any duly authorized committee of such Board.
“Board Resolution” shall mean
a resolution certified by the Secretary or an Assistant Secretary of the Company to have been duly adopted by the Board of Directors
or by a committee acting under authority of or appointment by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
“Business Day” shall mean,
unless otherwise specified pursuant to Section 2.03(b), with respect to any Place of Payment or any other particular location referred
to in this Indenture or in the Securities, a day that in the city (or in any one of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, is not a day on which banking institutions are authorized or required by
law or regulation to be closed.
“Capital Stock” shall mean,
as to shares of a particular corporation, outstanding shares of stock of any class, whether now or hereafter authorized, irrespective
of whether such class shall be limited to a fixed sum or percentage in respect of the rights of the holders thereof to participate
in dividends and in the distribution of assets upon the voluntary liquidation, dissolution or winding up of such corporation.
“Commission” shall mean the
Securities and Exchange Commission or any successor agency.
“Company” shall mean 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.
“Company Request” and “Company
Order” mean, respectively, a written request or order signed in the name of the Company by its Chief Executive Officer or
Chief Financial Officer, and delivered to the Trustee.
“Corporate Trust Office” shall
mean the designated office of the Trustee at which, at any particular time, its corporate trust business relating to this Indenture
shall be administered, which office at the date hereof is located at 100 Wall Street, Suite 600, New York, New York 10005, Attention:
Global Corporate Trust, Administrator – TriState Capital Holdings, Inc. (with a copy to: U.S. Bank National Association,
50 S 16th Street, Suite 2000, Philadelphia, Pennsylvania 19102, Attention: Global Corporate Trust, Administrator – TriState
Capital Holdings, Inc.), or such other address as the Trustee may designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such other address as such successor Trustee may designate from time
to time by notice to the Company).
“coupon” shall mean any interest
coupon appertaining to a Bearer Security.
“Default” or “default”
shall have the meaning specified in Article 6.
“Dollar” or “$”
shall mean a dollar or other equivalent unit in such coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
“Event of Default” shall have
the meaning specified in Article 6.
“Exchange Act” shall mean the
Securities Exchange Act of 1934, as amended.
“Exchange Date” shall have
the meaning set forth in Section 2.08.
“Global Securities” means a
Security in global form that evidences all or part of the Securities of any series and is registered in the name of the U.S. Depositary
for such Securities or a nominee thereof.
“holder,” “holder of
Securities,” “securityholder” or other similar term shall mean (a) in the case of any Registered Security, the
person in whose name such Security is registered in the Security Register kept by the Company for that purpose, in accordance with
the terms hereof, and (b) in the case of any Bearer Security, the bearer thereof, and as used with respect to any coupon appertaining
to any Bearer Security, the term “holder” shall mean the bearer thereof.
“Indenture” shall mean this
instrument as originally executed and delivered or as it may from time to time be supplemented or amended by one or more supplemental
indentures entered into pursuant to the applicable provisions hereof, including, without limitation, the forms and terms of particular
series of Securities established as contemplated by Article 2.
“Material Subsidiary” means
TriState Bank, or any successor thereof or any Subsidiary of the Company that is a depository institution and that has consolidated
assets equal to 80% or more of the Company’s consolidated assets.
“Officer’s Certificate”
shall mean a certificate signed by the Chief Executive Officer or the Chief Financial Officer of the Company and delivered to the
Trustee.
“Opinion of Counsel” shall
mean an opinion in writing signed by legal counsel, who may be an employee of or counsel to the Company and who shall be reasonably
satisfactory to the Trustee, or who may be other counsel reasonably satisfactory to the Trustee.
“Original Issue Discount Securities”
shall mean any Securities that are initially sold at a discount from the principal amount thereof and that provide upon an Event
of Default for declaration of an amount less than the principal amount thereof to be due and payable upon acceleration thereof.
“Outstanding” or “outstanding,”
when used with reference to Securities, shall, subject to the provisions of Section 8.01 and Section 8.04, mean, as of any particular
time, all Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore
cancelled by the Trustee or delivered to the Trustee for cancellation;
(b) Securities,
or portions thereof, for the payment or redemption of which moneys in the necessary amount shall have been deposited in trust with
the Trustee or with any paying agent (other than the Company) or shall have been set aside and segregated and held in trust by
the Company (if the Company shall act as its own paying agent) for the holders of such Securities and any coupons appertaining
thereto; provided, that if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof, notice of such
redemption shall have been given as provided in Article 3, or provision satisfactory to the Trustee shall have been made for giving
such notice;
(c) Securities that
have been defeased pursuant to Section 14.02 hereof; and
(d) Securities that
have been paid, mutilated, destroyed, lost or stolen and replaced pursuant to Section 2.09, or Securities in exchange for, in lieu
of and in substitution for which other Securities shall have been authenticated and delivered pursuant to the terms of Section
2.07, unless proof satisfactory to the Trustee is presented that any such Securities are held by bona fide holders in due course.
“Periodic Offering” shall mean
an offering of Securities of a series, from time to time, the specific terms of which (including, without limitation, the rate
or rates of interest or formula for determining the rate or rates of interest thereon, if any, the maturity date or dates thereof
and the redemption provisions, if any, with respect thereto) are to be determined by the Company upon the issuance of such Securities.
“Person” or “person”
shall mean any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used
with respect to the Securities of any series, means the place or places where, subject to the provisions of Section 4.02, the principal
of (and premium, if any, on) and any interest on the Securities of that series are payable as specified as contemplated by Section
2.03(b).
“Possessions,” when used with
respect to the United States, shall include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and Northern
Mariana Islands.
“record date” as used with
respect to any interest payment date shall have the meaning specified in Section 2.05.
“Registered Security” shall
mean any Security established pursuant to Section 2.01 and Section 2.03(b) that is registered on the Security Register of the Company.
“Responsible Officer,” when
used with respect to the Trustee, shall mean any officer within the Corporate Trust Office of the Trustee (or any successor group
of the Trustee), including any Vice President, Assistant Vice President, Assistant Secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers and also shall mean, with respect
to a particular corporate trust matter, any other officer to whom such matter is referred because of such officer’s knowledge
of and familiarity with the particular subject.
“Securities” shall have the
meaning set forth in the preamble of this Indenture.
“Securities Act” shall mean
the Securities Act of 1933, as amended.
“Security Register” and “Security
Registrar” shall have the respective meanings set forth in Section 2.07(a) hereof.
“Senior Indebtedness” means,
without duplication, the principal, premium, if any, unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether or not a claim for post-filing interest is allowed
in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and all other amounts payable under
or in respect of the following indebtedness of the Company, whether any such indebtedness exists as of the date of the Indenture
or is created, incurred or assumed after such date: (i) all obligations for borrowed money, (ii) all obligations evidenced by debentures,
Securities or other similar instruments, (iii) all 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, (iv) all obligations in respect of letters
of credit or bankers acceptances or similar instruments (or reimbursement obligations with respect thereto), (v) all obligations
to pay the deferred purchase price of property or services, except trade accounts payable arising in the ordinary course of business,
(vi) all indebtedness of others guaranteed by the Company or any of its Subsidiaries or for which the Company or any of its Subsidiaries
is legally responsible or liable (whether by agreement to purchase indebtedness of, or to supply funds or to invest in, others),
(vii) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property owned
by the Company but excluding any obligations of the Company which are required (as opposed to elected) to be treated as finance
leases under generally accepted accounting principles, (viii) purchase money and similar obligations, and (ix) any renewals, extensions,
refundings or replacements of any of the foregoing.
“Subsidiary” shall mean, in
respect of any Person, any corporation, association, partnership, limited liability company or other business entity of which more
than 50% of the total voting power of shares of Capital Stock or other interests (including partnership interests) entitled (without
regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by (a) such Person, (b) such Person and one or more Subsidiaries of such Person or
(c) one or more Subsidiaries of such Person.
“Trust Indenture Act,” except
as otherwise provided in this Indenture, shall mean the Trust Indenture Act of 1939, as amended, as in force at the date of this
Indenture as originally executed.
“Trustee” shall mean the person
identified as “Trustee” in the first paragraph hereof until the acceptance of appointment of a successor trustee pursuant
to the provisions of Article 7, and thereafter shall mean such successor trustee.
“United States Alien” shall
mean 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 to the extent that one or more of its members
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.
“U.S. Depositary” shall mean,
with respect to the Securities of any series issuable or issued in whole or in part in the form of one or more permanent Global
Securities, the person designated as U.S. Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency
registered under the Exchange Act, until a successor U.S. Depositary shall have become such pursuant to the applicable provisions
of this Indenture, and thereafter “U.S. Depositary” shall mean or include each person who is then a U.S. Depositary
hereunder, and if at any time there is more than one such person, “U.S. Depositary” as used with respect to the Securities
of any series shall mean the U.S. Depositary with respect to the Securities of such series.
“Vice President” when used
with respect to the Company or the Trustee shall mean any vice president, whether or not designated by a number or word or words
added before or after the title “vice president,” including any Executive Vice President or Senior Vice President.
ARTICLE 2
ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES
SECTION 2.01. Amount Unlimited; Issuable in Series.
Upon the execution of this Indenture, or
from time to time thereafter, Securities up to the aggregate principal amount and containing terms and conditions from time to
time authorized by or pursuant to a Board Resolution, or in a supplemental indenture, as set forth in Section 2.03, may be executed
by the Company and delivered to the Trustee for authentication (with the required deliverables hereunder), and the Trustee shall
thereupon authenticate and make available for delivery the Securities to or upon Company Order, without any further action by the
Company but subject to the provisions of Section 2.03, or in a supplemental indenture, as set forth in Section 2.03.
The Securities may be issued in one or
more series. The aggregate principal amount of Securities of all series that may be authenticated, delivered and outstanding under
this Indenture is not limited hereunder. The Securities of a particular series may be issued up to the aggregate principal amount
of Securities for such series from time to time authorized by or pursuant to a Board Resolution.
SECTION 2.02. Form of Trustee’s Certificate of Authentication.
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.
Dated: [
]
as Trustee
_______________________
By:
Authorized Signatory
SECTION 2.03. Form of Securities Generally; Establishment
of Terms of Series.
(a) The Registered
Securities, if any, of each series, the Bearer Securities, if any, of each series and related coupons, if any, the temporary Global
Securities of each series, if any, and the permanent Global Securities of each series, if any, shall be in the forms established
from time to time in or pursuant to one or more Board Resolutions (and, to the extent established pursuant to rather than set forth
in one or more Board Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the
relevant Board Resolution(s)) detailing such establishment) or established in a supplemental indenture.
The Securities may be issued in typewritten,
printed or engraved form with such letters, numbers or other marks of identification or designation (including “CUSIP”
numbers, if then generally in use) and such legends or endorsements printed, lithographed or engraved thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this Indenture, or as may be required to comply with any law
or with any rule or regulation made pursuant thereto or with any rule or regulation of any stock exchange on which the Securities
may be listed, or to conform to usage. Unless otherwise specified as contemplated hereinafter, Securities in bearer form shall
have interest coupons attached.
(b) At or prior
to the initial issuance of Securities of any series, the particular terms of Securities of such series shall be established in
or pursuant to one or more Board Resolutions (and to the extent established pursuant to rather than set forth in one or more Board
Resolutions, in an Officer’s Certificate (to which shall be attached true and correct copies of the relevant Board Resolution(s))
detailing such establishment) or established in a supplemental indenture, including the following:
(1) the designation
of the particular series (which shall distinguish such series from all other series);
(2) the price or
prices (which may be expressed as a percentage of the aggregate principal amount of the Securities being issued) at which the Securities
of the series will be issued;
(3) the aggregate
principal amount of such series that may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Securities of the series pursuant to this
Indenture and except for any Securities which, pursuant to Section 2.06, are deemed never to have been authenticated and delivered
hereunder);
(4) whether Securities
of the series are to be issuable as Registered Securities, Bearer Securities (with or without coupons) or both, whether any Securities
of the series are to be issuable initially in temporary global form with or without coupons and, if so, the name of the U.S. Depositary
with respect to any such temporary Global Security, and whether any Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial owners of interests in any such permanent Global Security may exchange
such interests for Securities of such series and of like tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided in Section 2.07 and the name of the U.S. Depositary with
respect to any such permanent Global Security;
(5) the date as
of which any Bearer Securities of such series and any temporary Security in global form representing Outstanding Securities of
such series shall be dated, if other than the date of original issuance of the first Securities of the series to be issued;
(6) the person to
whom any interest on any Registered Security of the series shall be payable, if other than the person in whose name that Security
(or one or more predecessor Securities) is registered at the close of business on the regular record date for such interest, the
manner in which, or the person to whom, any interest on any Bearer Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they severally mature, the extent to which, or the manner in
which, any interest payable on a temporary Global Security on an interest payment date will be paid if other than in the manner
provided in Section 2.05 and the extent to which, or the manner in which, any interest payable on a permanent Global Security on
an interest payment date will be paid;
(7) the date or
dates on which the principal of the Securities of such series is payable;
(8) the rate or
rates, and if applicable the method used to determine the rate, at which the Securities of such series shall bear interest, if
any, the date or dates from which such interest shall accrue, the date or dates on which such interest shall be payable and the
record date or dates for the interest payable on any Registered Securities on any interest payment date;
(9) the place or
places at which, subject to the provisions of Section 4.02, the principal of (and premium, if any, on) and any interest on Securities
of such series shall be payable, any Registered Securities of the series may be surrendered for registration of transfer, Securities
of the series may be surrendered for exchange and notices and demands to or upon the Company in respect of the Securities of the
series and this Indenture may be served;
(10) the obligation,
if any, of the Company to redeem or purchase Securities of such series, at the option of the Company or at the option of a holder
thereof, pursuant to any sinking fund or other redemption provisions and the period or periods within which, the price or prices
at which and the terms and conditions upon which Securities of the series may be so redeemed or purchased, in whole or in part;
(11) if other than
minimum denominations of $1,000 and any integral multiple thereof, the denominations in which any Registered Securities of such
series shall be issuable, and the denomination or denominations in which any Bearer Securities of the series shall be issuable,
if other than the minimum denomination of $5,000;
(12) if other than
the principal amount thereof, the portion of the principal amount of Securities of such series which shall be payable upon declaration
of acceleration of the maturity thereof;
(13) the currency,
currencies or currency units in which payment of the principal of (and premium, if any, on) and any interest on any Securities
of the series shall be payable if other than the currency of the United States of America and the manner of determining the equivalent
thereof in the currency of the United States of America for purposes of the definition of “Outstanding” in Section
1.01;
(14) if the principal
of (and premium, if any, on) or any interest on the Securities of the series is to be payable, at the election of the Company or
a holder thereof, in one or more currencies or currency units, other than that or those in which the Securities are stated to be
payable, the currency or currencies in which payment of the principal of (and premium, if any, on) and any interest on Securities
of such series as to which such election is made shall be payable, and the periods within which and the terms and conditions upon
which such election is to be made;
(15) if the amount
of payments of principal of (and premium, if any, on) or any interest on the Securities of the series may be determined with reference
to an index, the manner in which such amounts shall be determined;
(16) whether the
Securities will be issued in book-entry only form;
(17) any interest
rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(18) if either or
both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(19) whether and
under what circumstances the Company will pay Additional Amounts in respect of any series of Securities and whether the Company
has the option to redeem such Securities rather than pay such Additional Amounts;
(20) any provisions
relating to the extension of maturity of, or the renewal of, Securities of such series, or the conversion of Securities of such
series into other securities of the Company;
(21) any provisions
relating to the purchase or redemption of all or any portion of a tranche or series of Securities, including the period of notice
required to redeem those Securities;
(22) the terms and
conditions, if any, pursuant to which the Securities of the series are secured;
(23) the subordination
terms of the Securities of the series; and
(24) any other terms
of the Securities or provisions relating to the payment of principal of, premium (if any) or interest thereon, including, but not
limited to, whether such Securities are issuable at a discount or premium, as amortizable Securities, and if payable in, convertible
or exchangeable for commodities or for the securities of the Company.
All Securities of any one series need not
be issued at the same time and may be issued from time to time, consistent with the terms of this Indenture, if so provided by
or pursuant to the Board Resolution or Officer’s Certificate referred to above or as set forth in a supplemental indenture,
and, unless otherwise provided, the authorized principal amount of any series may be increased to provide for issuances of additional
Securities of such series. If so provided by or pursuant to the Board Resolution or Officer’s Certificate or supplemental
indenture referred to above, the terms of such Securities to be issued from time to time may be determined as set forth in such
Board Resolution, Officer’s Certificate or supplemental indenture, as the case may be. All Securities of any one series shall
be substantially identical except as to denomination, interest rate, maturity and other similar terms and except as may be provided
otherwise by or pursuant to such Board Resolution, Officer’s Certificate or supplemental indenture.
SECTION 2.04. Securities in Global Form.
If Securities of a series are issuable
in global form, as specified as contemplated by Section 2.03(b), then, notwithstanding clause (11) of Section 2.03(b) and the provisions
of Section 2.05, any such Security in global form shall represent such of the Securities of such series Outstanding as shall be
specified therein, and any such Security in global form may provide that it shall represent the aggregate amount of Securities
Outstanding from time to time endorsed thereon and that the aggregate amount of Securities Outstanding represented thereby may
from time to time be reduced to reflect any exchanges of beneficial interests in such Security in global form for Securities of
such series as contemplated herein. Any endorsement of a Security in global form to reflect the amount, or any decrease in the
amount, of Securities Outstanding represented thereby shall be made by the Trustee or the Security Registrar in such manner and
upon instructions given by such person or persons as shall be specified in such Security in global form or in the Company Order
to be delivered to the Trustee pursuant to Section 2.06 or Section 2.08. Subject to the provisions of Section 2.06 and, if applicable,
Section 2.08, the Trustee or the Security Registrar shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the person or persons specified in such Security in global form or in the applicable Company Order.
If a Company Order pursuant to Section 2.06 or Section 2.08 has been, or simultaneously is, delivered, any instructions by the
Company with respect to endorsement or delivery or redelivery of a Security in global form shall be in writing but need not be
represented by a Company Order and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of
Section 2.06 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 or the Security Registrar the Security in global form together with written
instructions (which need not be represented by a Company Order and need not be accompanied by an Opinion of Counsel) with regard
to the reduction in the principal amount of Securities represented thereby, together with the written statement contemplated by
the last sentence of Section 2.06.
Notwithstanding the provisions of Section
2.05, unless otherwise specified as contemplated by Section 2.03(b), payment of principal of and any premium and interest on any
Security in permanent global form shall be made to the persons or persons specified therein.
SECTION 2.05. Denominations; Record Date; Payment of Interest.
(a) Unless otherwise
provided as contemplated by Section 2.03(b) with respect to any series of Securities, any Registered Securities of a series shall
be issuable without coupons in minimum denominations of $1,000 and any Bearer Securities of a series shall be issuable, with interest
coupons attached, in the minimum denomination of $5,000.
(b) The term “record
date” as used with respect to an interest payment date for any series of a Registered Security shall mean such day or days
as shall be specified as contemplated by Section 2.03(b); provided, that in the absence of any such provisions with respect to
any series, such term shall mean (1) the last day of the calendar month next preceding such interest payment date if such interest
payment date is the 15th day of a calendar month; or (2) the 15th day of a calendar month next preceding such interest payment
date if such interest payment date is the first day of the calendar month.
Unless otherwise provided as contemplated
by Section 2.03 with respect to any series of Securities, the person in whose name any Registered Security is registered at the
close of business on the record date with respect to an interest payment date shall be entitled to receive the interest payable
on such interest payment date notwithstanding the cancellation of such Security upon any registration of transfer or exchange thereof
subsequent to such record date prior to such interest payment date; provided, that if and to the extent the Company shall default
in the payment of the interest due on such interest payment date, such defaulted interest shall be paid to the persons in whose
names the Securities are registered on a subsequent record date established by notice given to the extent and in the manner set
forth in Section 15.04 by or on behalf of the Company to the holders of Securities of the series in default not less than 15 days
preceding such subsequent record date, such record date to be not less than five days preceding the date of payment of such defaulted
interest, or in any other lawful manner acceptable to the Trustee.
(c) Unless otherwise
specified by Board Resolution or Company Order for a particular series of Securities, the principal of, redemption premium, if
any, on and interest, if any, on the Securities of any series shall be payable at the office or agency of the Company maintained
pursuant to Section 4.02 in a Place of Payment for such series, in the coin or currency of the United States of America that at
the time is legal tender for public and private debt; provided, that, at the option of the Company, payment of interest with respect
to a Registered Security may be paid by check mailed to the holders of the Registered Securities entitled thereto at their last
addresses as they appear on the Security Register or wired if held in book-entry form at the U.S. Depositary.
SECTION 2.06. Execution, Authentication, Delivery and Dating
of Securities.
The Securities shall be signed on behalf
of the Company by its Chief Executive Officer or its Chief Financial Officer. Such signatures may be the manual or facsimile signatures
of such then-current officers.
Coupons shall bear the facsimile signature
of the Secretary or one of the Assistant Secretaries of the Company or such other officer of the Company as may be specified pursuant
to Section 2.03(b). Any Security or coupon may be signed on behalf of the Company by such persons as, at the actual date of the
execution of such Security, shall be the proper officers of the Company, although at the date of the execution of this Indenture
any such person was not such officer. Securities and coupons bearing the manual or facsimile signatures of individuals who were,
at the actual date of the execution of such Security or coupon, 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 the delivery of such coupons, as the case may be, or did not hold such offices at the date of such Securities.
Upon the execution and delivery of this
Indenture, the Company shall deliver to the Trustee an Officer’s Certificate as to the incumbency and specimen signatures
of officers authorized to execute and deliver the Securities and coupons and give instructions under this Section and, as long
as Securities are Outstanding under this Indenture, shall deliver a similar Officer’s Certificate each year on the anniversary
of the date of the first such Officer’s Certificate. The Trustee may conclusively rely on the documents delivered pursuant
to this Section (unless revoked by superseding comparable documents) and Section 2.03 hereof as to the authorization of the Board
of Directors of any Securities delivered hereunder, and the form and terms thereof, and as to the authority of the instructing
officers referred to in this Section so to act.
The Trustee shall at any time, and from
time to time, authenticate Securities for original issue in an unlimited aggregate principal amount upon receipt by the Trustee
of a Company Order; provided, that with respect to Securities of a series subject to a Periodic Offering, (a) such Company Order
may be delivered to the Trustee prior to the delivery to the Trustee of such Securities for authentication and delivery, (b) the
Trustee shall authenticate and deliver Securities of such series for original issue from time to time, in an aggregate principal
amount not exceeding the aggregate principal amount, if any, established for such series, pursuant to a Company Order or pursuant
to such procedures acceptable to the Trustee as may be specified from time to time by a Company Order, (c) the maturity date or
dates, original issue date or dates, interest rate or rates and any other terms of Securities of such series shall be determined
by Company Order or pursuant to such procedures, and (d) if provided for in such procedures, such Company Order may authorize authentication
and delivery pursuant to oral or electronic instructions from the Company or its duly authorized agent or agents, which oral instructions
shall be promptly confirmed in writing. Except as permitted by Section 2.09, the Trustee shall not authenticate and deliver any
Bearer Security unless all appurtenant coupons for interest then matured have been detached and cancelled.
Prior to the issuance of a Security of
any new series and any related coupons, and the authentication thereof by the Trustee, the Trustee shall have received and (subject
to Section 7.02) shall be fully protected in relying on:
(a) The Board Resolution
or Officer’s Certificate or supplemental indenture establishing the terms and the form of the Securities of that series pursuant
to Section 2.01 and Section 2.03;
(b) An Officer’s
Certificate stating that all conditions precedent provided for in this Indenture relating to the authentication and delivery of
Securities in such form have been complied with; and
(c) An Opinion of
Counsel stating that the form and terms of such Securities and coupons, if any, have been established in conformity with the provisions
of this Indenture and that all conditions precedent in connection with the authentication and delivery of the Securities have been
satisfied; provided, that with respect to Securities of a series subject to a Periodic Offering, the Trustee shall be entitled
to receive such Opinion of Counsel only once at or prior to the time of the first authentication of Securities of such series.
With respect to Securities of a series
offered in a Periodic Offering, the Trustee may conclusively rely, as to the authorization by the Company of any of such Securities,
the form and terms thereof, any coupons and the legality, validity, binding effect and enforceability thereof, upon the Opinion
of Counsel and other documents delivered pursuant to this Section in connection with the first authentication of Securities of
such series unless and until such Opinion of Counsel or other documents have been superseded or revoked. In connection with the
authentication and delivery of Securities of a series subject to a Periodic Offering, the Trustee shall be entitled to assume that
the Company’s instructions to authenticate and deliver such Securities do not violate any rules, regulations or orders of
any governmental agency or commission having jurisdiction over the Company.
Each Registered Security shall be dated
the date of its authentication except as otherwise provided by Board Resolution or Officer’s Certificate or supplemental
indenture; and each Bearer Security shall be dated as of the date of original issuance of the first Security of such series to
be issued unless otherwise specified pursuant to Section 2.03 hereof.
The aggregate principal amount of Securities
of any series outstanding at any time may not exceed any limit upon the maximum principal amount for such series set forth in or
pursuant to the Board Resolution or Officer’s Certificate or supplemental indenture delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security or coupon shall be entitled
to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Security, or the Security
to which such coupon appertains, a certificate of authentication substantially in the form provided for herein executed by the
Trustee by manual signature, and such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any Security shall have been authenticated
and delivered hereunder but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 2.10 together with a written statement stating that such Security has never been issued and
sold by the Company, for all purposes of this Indenture such Security shall be deemed never to have been authenticated and delivered
hereunder and shall never be entitled to the benefits of this Indenture.
SECTION 2.07. Exchange and Registration of Transfer of Securities.
(a) The Company
shall keep, at an office or agency to be designated and maintained by the Company in accordance with Section 4.02 (as such, a “Security
Registrar”), registry books (the “Security Register”) in which, subject to such reasonable regulations as it
may prescribe, the Company shall register Registered Securities and shall register the transfer of Registered Securities of each
such series as provided in this Article 2. Such Security Register shall be in written form or in any other form capable of being
converted into written form within a reasonable time. At all reasonable times such Security Register shall be open for inspection
by the Trustee. Upon due presentment for registration of transfer of any Registered Security of a particular series at such office
or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, the Company shall execute and register and
the Trustee shall authenticate and make available for delivery in the name of the transferee or transferees a new Registered Security
or Registered Securities of such series of any authorized denominations and for an equal aggregate principal amount and tenor.
(b) At the option
of the holder, Registered Securities of any series may be exchanged for other Registered Securities of the same series of any authorized
denominations and of an equal aggregate principal amount and tenor. Registered Securities to be exchanged shall be surrendered
at any such office or agency maintained pursuant to Section 4.02 for such purpose in a Place of Payment, and the Company shall
execute and register and the Trustee shall authenticate and make available for delivery in exchange therefor the Security or Securities
that the securityholder making the exchange shall be entitled to receive. Registered Securities, including Registered Securities
received in exchange for Bearer Securities, may not be exchanged for Bearer Securities, unless the Company otherwise expressly
provides for the issuance, upon such terms and conditions as may be provided with respect to such series, by the Company of Registered
Securities of a series that may be exchanged, at the option of the securityholder upon such conditions and limitations as may be
specified by the Company, for Bearer Securities of such series.
At the option of the holder, Bearer Securities
of any series may be exchanged for Registered Securities of the same series of any authorized denominations and of a like aggregate
principal amount and tenor, upon surrender of the Bearer Securities to be exchanged at any such office or agency, with all unmatured
coupons (except as provided below) and with all matured coupons in default appertaining thereto. If the holder of a Bearer Security
is unable to produce any such unmatured coupon or coupons or matured coupon or coupons in default, such exchange may be effected
if the Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal to the face amount of
such missing coupon or coupons, or the surrender of such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require to save each of them and any paying agent harmless.
If thereafter the holder of such Securities shall surrender to any paying agent any such missing coupon in respect of which such
a payment shall have been made, such holder shall be entitled to receive the amount of such payment; provided, that, except as
otherwise provided in Section 4.02, interest represented by coupons shall be payable only upon presentation and surrender of those
coupons at an office or agency located outside the United States and its Possessions. Notwithstanding the foregoing, in case a
Bearer Security of any series is surrendered at any such office or agency in exchange for a Registered Security of the same series
and like tenor after the close of business at such office or agency on (i) any record date and before the opening of business at
such office or agency on the relevant interest payment date, or (ii) any special record date and before the opening of business
at such office or agency on the related proposed date for payment of defaulted interest as set forth in Section 2.05, such Bearer
Security shall be surrendered without the coupon relating to such interest payment date or proposed date for payment, as the case
may be, and interest or defaulted interest, as the case may be, will not be payable on such interest payment date or proposed date
for payment, as the case may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will be
payable only to the holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered
for exchange, the Company shall execute and register, and the Trustee shall authenticate and make available for delivery, the Securities
which the holder making the exchange is entitled to receive.
(c) All Securities
issued upon any registration of transfer or exchange of Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the Securities surrendered upon such registration of transfer
or exchange.
All Registered Securities presented for
registration of transfer or for exchange, redemption or payment, as the case may be, shall (if so required by the Company or the
Trustee) be duly endorsed by, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee or the 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
exchange or registration of transfer 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 therewith, other than exchanges pursuant to the terms of this Indenture
not involving any transfer.
The Company shall not be required (1) to
exchange or register the transfer of Securities of any series to be redeemed for a period of 15 days next preceding any selection
of such Securities to be redeemed, (2) to exchange or register the transfer of any Registered Security so selected, called or being
called for redemption, except in the case of any such series to be redeemed in part the portion thereof not to be so redeemed,
or (3) to exchange any Bearer Security so selected for redemption except that such a Bearer Security may be exchanged for a Registered
Security of that series and of like tenor, provided that such Registered Security shall be simultaneously surrendered for redemption.
(d) Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 2.03(b), any permanent Global Security shall be exchangeable
pursuant to this Section only as provided in this paragraph. If the beneficial owners of interests in a permanent global Security
are entitled to exchange such interests for Securities of such series and of like tenor and principal amount of another authorized
form and denomination, as specified as contemplated by Section 2.03(b), 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 or the Security Registrar
definitive Securities of that series in aggregate principal amount equal to the principal amount of such permanent Global Security
executed by the Company. On or after the earliest date on which such interests may be so exchanged, in accordance with instructions
given by the Company to the Trustee or the Security Registrar and the U.S. Depositary (which instructions shall be in writing),
such permanent Global Security shall be surrendered from time to time by the U.S. Depositary, or such other depositary or U.S.
Depositary, as the case may be, as shall be specified in the Company Order with respect thereto to the Trustee, as the Company’s
agent for such purpose, or to the Security Registrar, to be exchanged, in whole or in part, for definitive Securities of the same
series without charge and the Trustee shall authenticate and make available for delivery in accordance with such instructions,
in exchange for each portion of such permanent 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 permanent Global Security to be exchanged which
(unless the Securities of the series are not issuable both as Bearer Securities and as Registered Securities, in which case the
definitive Securities exchanged for the permanent Global Security shall be issuable only in the form in which the Securities are
issuable, as specified as contemplated by Section 2.03(b)), shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner thereof; provided, that no such exchanges may occur for
a period of 15 days next preceding any selection of Securities of that series and of like tenor for redemption; and provided further,
that no Bearer Security delivered in exchange for a portion of a permanent Global Security shall be mailed or otherwise delivered
to any location in the United States or its Possessions. Promptly following any such exchange in part, such permanent Global Security
should be returned by the Trustee or the Security Registrar to the U.S. Depositary, or such other depositary or U.S. Depositary
referred to above in accordance with the instructions of the Company referred to above. If a Registered Security is issued in exchange
for any portion of a permanent Global Security after the close of business at the office or agency where such exchange occurs on
(i) any record date and before the opening of business at such office or agency on the relevant interest payment date, or (ii)
any special record date and before the opening of business at such office or agency on the related proposed date for payment of
defaulted interest as provided in Section 2.05, interest or defaulted interest, as the case may be, will not be payable on such
interest payment date or proposed date for payment, as the case may be, in respect of such Registered Security, but will be payable
on such interest payment date or proposed date for payment, as the case may be, only to the person to whom interest in respect
of such portion of such permanent Global Security is payable in accordance with the provisions of this Indenture.
SECTION 2.08. Temporary Securities.
Pending the preparation of definitive Securities
of any series, the Company may execute and the Trustee shall, upon Company Order, authenticate and make available for delivery,
temporary Securities of such series (typewritten, printed, lithographed or otherwise produced). Such temporary Securities, in any
authorized denominations, shall be substantially in the form of the definitive Securities in lieu of which they are issued, in
registered form or, if authorized, in bearer form with one or more or without coupons, in the form approved from time to time by
or pursuant to a Board Resolution but with such omissions, insertions, substitutions and other variations as may be appropriate
for temporary Securities, all as may be determined by the Company, but not inconsistent with the terms of this Indenture or any
provision of applicable law. In the case of any series issuable as Bearer Securities, such temporary Securities shall be delivered
only in compliance with the conditions set forth in Section 2.06 and may be in global form.
Except in the case of temporary Securities
in global form (which shall be exchanged as hereinafter provided), if temporary Securities of any series are issued, the Company
will cause definitive Securities of that series to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be exchangeable for definitive Securities of such series
upon surrender of the temporary Securities of such series at the office or agency of the Company maintained pursuant to Section
4.02 in a Place of Payment for such series for the purpose of exchanges of Securities of such series, without charge to the holder.
Upon surrender for cancellation of any one or more temporary Securities of any series (accompanied by any unmatured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and make available for delivery in exchange therefor a like
aggregate principal amount of definitive Securities of the same series and of like tenor of authorized denominations; provided,
that, except as otherwise expressly provided by the Company as contemplated in Section 2.07(b), no definitive Bearer Security shall
be delivered in exchange for a temporary Registered Security; and provided further, however, that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in compliance with the conditions set forth in Section 2.06.
Without unnecessary delay but in any event
not later than the date specified in, or determined pursuant to the terms of, any such temporary Global Security of a series (the
“Exchange Date”), the Company shall deliver to the Trustee definitive Securities of that series, in aggregate principal
amount equal to the principal amount of such temporary Global Security, executed by the Company. On or after the Exchange Date
such temporary Global Security shall be presented and surrendered by the U.S. Depositary to the Trustee, as the Company’s
agent for such purpose, or to the Security Registrar, to be exchanged, in whole or from time to time in part, for definitive Securities
of such series without charge, and the Trustee shall authenticate and make available for delivery, in exchange for each portion
of such temporary 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 temporary Global Security to be exchanged.
Every temporary Security shall be executed
by the Company and shall be authenticated by the Trustee upon the same conditions and in substantially the same manner, and with
like effect, as the definitive Securities.
SECTION 2.09. Mutilated, Destroyed, Lost or Stolen Securities
and Coupons.
If any mutilated Security or a Security
with a mutilated coupon appertaining thereto is surrendered to the Trustee, the Company shall execute and the Trustee shall authenticate
and make available for delivery in exchange therefor a new Security of the same series and of like tenor and principal amount and
bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company
and the Trustee (i) evidence to their satisfaction of the destruction, loss or theft of any Security or coupon and (ii) such security
or indemnity as may be required by them to save each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been acquired by a bona fide purchaser, the Company shall,
subject to the following paragraph, execute and the Trustee shall authenticate and make available for delivery, in lieu of any
such destroyed, lost or stolen Security or in exchange for the Security to which a destroyed, lost or stolen coupon appertains
(with all appurtenant coupons not destroyed, lost or stolen), a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to such destroyed, lost or stolen Security or to the Security to which such destroyed, lost or stolen coupon appertains.
In case any such mutilated, destroyed,
lost or stolen Security or coupon has become or is about to become due and payable, the Company in its discretion may, instead
of issuing a new Security, pay such Security or coupon; provided, however, that principal of (and premium, if any, on) and any
interest on Bearer Securities shall, except as otherwise provided in Section 4.02, be payable only at an office or agency located
outside the United States and its Possessions.
Upon the issuance of any new Security under
this Section, the Company may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed
in relation thereto and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series, with
any coupons appertaining thereto, issued pursuant to this Section in lieu of any destroyed, lost or stolen Security or in exchange
for a Security to which a destroyed, lost or stolen coupon appertains, shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security and any coupons appertaining thereto, or the destroyed, lost
or stolen coupon shall be at any time enforceable by anyone, and any such new Security and coupons, if any, shall be entitled to
all the benefits of this Indenture equally and proportionately with any and all other Securities of that series and their coupons,
if any, duly issued hereunder.
The provisions of this Section are exclusive
and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons.
SECTION 2.10. Cancellation.
All Securities surrendered for payment,
redemption, exchange or registration of transfer or for credit against any sinking fund payment, as the case may be, and any coupons
surrendered for payment, shall, if surrendered to the Company or any agent of the Company or of the Trustee, be delivered to the
Trustee. All Registered Securities and matured coupons so delivered shall be promptly cancelled by the Trustee. All Bearer Securities
and unmatured coupons so delivered shall be held by the Trustee, and upon instruction by a Company Order, shall be cancelled or
held for reissuance. All Bearer Securities and unmatured coupons held by the Trustee pending such cancellation or reissuance shall
be deemed to be delivered for cancellation for all purposes of this Indenture and the Securities. The Company may deliver to the
Trustee for cancellation any Securities previously authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and may deliver to the Trustee (or to any other person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued and sold, and all Securities so delivered shall
be promptly cancelled by the Trustee. No Securities shall be authenticated in lieu of or in exchange for any Securities cancelled
as provided in this Section except as expressly provided by this Indenture. Any cancelled Securities and coupons held by the Trustee
shall be delivered to the Company or disposed of (including by destruction of such Securities in accordance with the Trustee’s
customary procedures) as directed by the Company. Upon written request in the form of a Company Order, the Company may direct the
Trustee to deliver a certificate of such disposal or destruction to the Company.
SECTION 2.11. Book Entry Only System.
If specified by the Company pursuant to
Section 2.03(b) with respect to Securities represented by a Security in global form, a series of Securities may be issued initially
in book-entry only form and, if issued in such form, shall be represented by one or more Securities in global form registered in
the name of the U.S. Depositary or other depositary designated with respect thereto. So long as such system of registration is
in effect, (a) Securities of such series so issued in book-entry only form will not be issuable in the form of or exchangeable
for Securities in certificated or definitive registered form, (b) the records of the U.S. Depositary or such other depositary will
be determinative for all purposes and (c) neither the Company, the Trustee nor any paying agent, Security Registrar or transfer
agent for such Securities will have any responsibility or liability for (i) any aspect of the records relating to or payments made
on account of owners of beneficial interests in the Securities of such series, (ii) maintaining, supervising or reviewing any records
relating to such beneficial interests, (iii) receipt of notices, voting and requesting or directing the Trustee to take, or not
to take, or consenting to, certain actions hereunder, or (iv) the records and procedures of the U.S. Depositary or such other depositary,
as the case may be.
ARTICLE 3
REDEMPTION OF SECURITIES
SECTION 3.01. Redemption of Securities, Applicability of
Section.
Redemption of Securities of any series
as permitted or required by the terms thereof shall be made in accordance with the terms of such Securities as specified pursuant
to Section 2.03 hereof and this Article; provided, however, that if any provision of any series of Securities shall conflict with
any provision of this Section, the provision of such series of Securities shall govern.
SECTION 3.02. Notice of Redemption, Selection of Securities.
In case the Company shall desire to exercise
the right to redeem all or, as the case may be, any part of a series of Securities pursuant to Section 3.01, it shall fix a date
for redemption. Notice of redemption of Securities to be redeemed at the election of the Company shall be given by the Company,
or, at the Company’s request, by the Trustee in the name and at the expense of the Company. The Company or the Trustee, as
the case may be, shall give notice of such redemption, in the manner and to the extent set forth in Section 15.04, on that date
prior to the date fixed for a redemption to the holders of such Securities so to be redeemed, as a whole or in part, (a) as set
forth in a Board Resolution, as described in Section 2.03, or (b) as determined by the Chief Executive Officer or the Chief Financial
Officer of the Company (each, an “Authorized Officer”) and evidenced by the preparation of an offering document or
an Officer’s Certificate specifying the period of notice of such redemption. If the Board Resolutions or an Authorized Officer
do not specify a period of notice of such redemption, the Company or the Trustee, as the case may be, shall give notice of such
redemption, in the manner and to the extent set forth in Section 15.04, at least 10 Business Days and not more than 60 calendar
days prior to the date fixed for a redemption to the holders of such Securities so to be redeemed as a whole or in part. Notice
given in such manner shall be conclusively presumed to have been duly given, whether or not the holder receives such notice. In
any case, failure to give such notice or any defect in the notice to the holder of any such Security designated for redemption
as a whole or in part shall not affect the validity of the proceedings for the redemption of any other such Security. If the Company
requests the Trustee to give any notice of redemption, it shall make such request at least 10 days prior to the designated date
for delivering such notice, unless a shorter period is satisfactory to the Trustee.
Each such notice of redemption shall specify the
date fixed for redemption, the redemption price at which such Securities are to be redeemed, the CUSIP numbers of such Securities,
the Place of Payment where such Securities, together, in the case of Bearer Securities, with all coupons appertaining thereto,
if any, maturing after the date of redemption, are to be surrendered for payment of the redemption prices, that payment will be
made upon presentation and surrender of such Securities, that interest accrued to the date fixed for redemption will be paid as
specified in the notice, and that on and after the date interest thereon or on the portions thereof to be redeemed will cease to
accrue. If less than all of a series is to be redeemed, the notice of redemption shall specify the numbers of the Securities to
be redeemed or, in the case of Global Securities, the portion of such Global Securities. In case any Security is to be redeemed
in part only, the notice of redemption shall state the portion of the principal amount thereof to be redeemed and shall state that,
upon surrender of such Security, a new Security or Securities of the same series in principal amount equal to the unredeemed portion
thereof will be issued or, in the case of a Global Security, the books and records of the U.S. Depositary and the Security Registrar
or the Trustee will reflect the reduction in the principal amount of such Global Security as a result of such partial redemption.
On or before the redemption date specified
in the notice of redemption given as provided in this Section, the Company will deposit in trust with the Trustee or with one or
more paying agents an amount of money sufficient to redeem on the redemption date all the Securities or portions of Securities
so called for redemption at the appropriate redemption price, together with accrued interest, if any, to the date fixed for redemption.
If less than all of a series of Securities is to be redeemed, the Company will give the Trustee adequate written notice at least
45 days in advance (unless a shorter notice shall be satisfactory to the Trustee) as to the aggregate principal amount of Securities
to be redeemed.
If less than all the Securities of a series
are to be redeemed, the Trustee shall select, pro rata, by lot or in such other manner is it shall deem appropriate and fair (subject
to the customary procedures of any depositary or exchange), not more than 60 days prior to the date of redemption, the numbers
of such Securities Outstanding not previously called for redemption, to be redeemed in whole or in part. The portion of principal
of Securities so selected for partial redemption shall be equal to the minimum authorized denomination for Securities of that series
or any integral multiple thereof. The Trustee shall promptly notify the Company of the Securities to be redeemed. If, however,
less than all the Securities of a series having differing issue dates, interest rates and stated maturities are to be redeemed,
the Company in its sole discretion shall select the particular Securities of such series to be redeemed and shall notify the Trustee
in writing at least 45 days prior to the relevant redemption date.
SECTION 3.03. Payment of Securities Called for Redemption.
If notice of redemption has been given
as above provided, the Securities or portions of Securities with respect to which such notice has been given shall become due and
payable on the date and at the place stated in such notice at the applicable redemption price, together with any interest accrued
to the date fixed for redemption, and on and after that date (unless the Company shall default in the payment of such Securities
at the redemption price, together with interest accrued to that date) interest on such Securities or portions of Securities so
called for redemption shall cease to accrue and the coupons, if any, for such interest appertaining to any Bearer Securities so
to be redeemed, except to the extent provided below, shall be void. On presentation and surrender of such Securities subject to
redemption at the Place of Payment and in the manner specified in such notice, together with all coupons, if any, appertaining
thereto and maturing after the date specified in such notice for redemption, such Securities or the specified portions thereof
shall be paid and redeemed by the Company at the applicable redemption price, together with interest accrued thereon to the date
fixed for redemption; provided, that installments of interest on Bearer Securities whose stated maturity date is on or prior to
the date of redemption shall be payable only at an office or agency located outside the United States and its Possessions (except
as otherwise provided in Section 4.02) and, unless otherwise specified as contemplated by Section 2.03, only upon presentation
and surrender of coupons for such interest; and provided further, that unless otherwise specified as contemplated by Section 2.03,
installments of interest on Registered Securities whose stated maturity date is on or prior to the date of redemption shall be
payable to the holders of such Registered Securities, or one or more predecessor Securities, registered as such at the close of
business on the relevant record dates according to their terms and the provisions of Section 2.05.
At the option of the Company, payment with
respect to Registered Securities may be made by check to the holders of such Securities or other persons entitled thereto against
presentation and surrender of such Securities.
If any Bearer Security surrendered for
redemption shall not be accompanied by all appurtenant coupons maturing after the date of redemption, such Security may be paid
after deducting from the redemption price an amount equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there is furnished to them such security or indemnity
as they may require to save each of them and any paying agent harmless. If thereafter the holder of such Security shall surrender
to the Trustee or any paying agent any such missing coupon in respect of which a deduction shall have been made from the redemption
price, such holder shall be entitled to receive the amount so deducted; provided, that interest represented by coupons shall be
payable only at an office or agency located outside the United States and its Possessions (except as otherwise provided in Section
4.02) and, unless otherwise specified as contemplated by Section 2.03, only upon presentation and surrender of those coupons.
Any Security (including any coupons appertaining
thereto) that is to be redeemed only in part shall be surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form satisfactory to the Company and the Trustee duly executed
by, the holder thereof or such holder’s attorney duly authorized in writing), and upon such presentation, the Company shall
execute and the Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of the Company,
a new Security or Securities of the same series, of authorized denominations, in aggregate principal amount equal to the unredeemed
portion of the principal of the Security so presented. If a temporary Global Security or permanent Global Security is so surrendered,
such new Security so issued shall be a new temporary Global Security or permanent Global Security, respectively.
SECTION 3.04. Redemption Suspended During Event of Default.
The Trustee shall not redeem any Securities
(unless all Securities then outstanding are to be redeemed) or commence the giving of any notice of redemption of Securities during
the continuance of any Event of Default of which a Responsible Officer of the Trustee has actual knowledge or notice, except that
where the giving of notice of redemption of any Securities shall theretofore have been made, the Trustee shall redeem such Securities,
provided funds are deposited with it for such purpose. Except as aforesaid, any moneys theretofore or thereafter received by the
Trustee shall, during the continuance of such Event of Default, be held in trust for the benefit of the securityholders and applied
in the manner set forth in Section 6.06; provided, that in case such Event of Default shall have been waived as provided herein
or otherwise cured, such moneys shall thereafter be held and applied in accordance with the provisions of this Article.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay
or cause to be paid the principal of (and premium, if any, on) and any interest on each of the Securities of a series at the place,
at the respective times and in the manner provided in the terms of the Securities, any coupons appertaining thereto and this Indenture.
Unless otherwise specified as contemplated by Section 2.03(b) with respect to any series of Securities, any interest due on and
any Additional Amounts payable in respect of Bearer Securities on or before maturity shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are evidenced thereby as they severally mature.
SECTION 4.02. Offices for Notices and Payments, etc.
If Securities of a series are issuable
only as Registered Securities, the Company will maintain in each Place of Payment for such series an office or agency where Securities
of that series may be presented or surrendered for payment, where Securities of that series may be surrendered for registration
of transfer or exchange and where notices and demands to or upon the Company in respect of the Securities of that series and this
Indenture may be served. If Securities of a series are issuable as Bearer Securities, the Company will maintain (a) in the contiguous
United States, an office or agency where any Registered Securities of that series may be presented or surrendered for payment,
where any Registered Securities of that series may be surrendered for registration of transfer, where Securities of that series
may be surrendered for exchange, where notices and demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and related coupons may be presented or surrendered for
payment in the circumstances described below (and not otherwise), (b) subject to any laws or regulations applicable thereto, in
a Place of Payment for that series which is located outside the United States and its Possessions, an office or agency where Securities
of that series and related coupons may be presented and surrendered for payment; provided, that if the Securities of that series
are listed on The International Stock Exchange of the United Kingdom and the Republic of Ireland, Limited, the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and its Possessions and such stock exchange shall so require,
the Company will maintain a paying agent for the Securities of that series in London, Luxembourg or any other required city located
outside the United States and its Possessions, as the case may be, so long as the Securities of that series are listed on such
exchange, and (c) subject to any laws or regulations applicable thereto, in a Place of Payment for that series which is located
outside the United States and its Possessions, an office or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be surrendered for exchange and where notices and demands to
or upon the Company in respect of the Securities of that series and this Indenture may be served.
The Company will give to the Trustee notice
of the location of each such office or agency and of any change in the location thereof. In case the Company shall fail to maintain
any such office or agency as required, or shall fail to give such notice of the location or of any change in the location thereof,
presentations and surrenders of Securities of that series may be made and notices and demands may be served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the related coupons may be presented and surrendered for
payment at any paying agent for such series located outside the United States and its Possessions.
No payment of principal, premium or interest
on Bearer Securities shall be made at any office or agency of the Company in the United States or its Possessions or by check mailed
to any address in the United States or its Possessions or by transfer to any account maintained with a financial institution located
in the United States or its Possessions; provided, that, if the Securities of a series are denominated and payable in Dollars,
payment of principal of (and premium, if any) and any interest on any Bearer Security shall be made at the office of the Company’s
paying agent in the contiguous United States, if (but only if) payment in Dollars of the full amount of such principal, premium,
interest or Additional Amounts, as the case may be, at all offices or agencies outside the United States and its Possessions maintained
for the purpose by the Company in accordance with this Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also from time to time
designate one or more other offices or agencies where the Securities of one or more series may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations; provided, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance with the requirements set
forth above for Securities of any series for such purposes. The Company will give prompt written notice to the Trustee and the
holders of any such designation or rescission and of any change in the location of any such other office or agency.
The Company hereby initially designates
the Corporate Trust Office as the office of the Company in the contiguous United States where Registered Securities may be presented
for payment, for registration of transfer and for exchange as in this Indenture provided and where notices and demands to or upon
the Company in respect of the Securities or of this Indenture may be served; provided that the Corporate Trust Office shall not
be an office or agency of the Company for the service of legal process against the Company.
SECTION 4.03. Provisions as to Paying Agent.
(a) Whenever the
Company shall appoint a paying agent other than the Trustee with respect to the Securities of any series, it will cause such paying
agent to execute and deliver to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the provisions
of this Section:
(1) that it will
hold sums held by it as such agent for the payment of the principal of (and premium, if any, on) or any interest on the Securities
of such series (whether such sums have been paid to it by the Company or by any other obligor on the Securities of such 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 and will notify the Trustee of the receipt of sums to be so held;
(2) that it will
give the Trustee written notice of any failure by the Company (or by any other obligor on the Securities of such series) to make
any payment of the principal of (or premium, if any, on) or any interest on the Securities of such series when the same shall be
due and payable; and
(3) that at any
time when any such failure has occurred and is continuing, it will, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such paying agent.
(b) If the Company
shall act as its own paying agent, it will, on or before each due date of the principal of (and premium, if any) or any interest
on the Securities of any series, set aside, segregate and hold in trust for the benefit of the persons entitled thereto a sum sufficient
to pay such principal (and premium, if any) or any interest so becoming due until such sums shall be paid to such persons or otherwise
disposed of as herein provided. The Company will promptly notify the Trustee of any failure to take such action.
(c) Whenever the
Company shall have one or more paying agents with respect to a series of Securities, it will, on or prior to each due date of the
principal of (and premium, if any, on) or any interest on, any Securities, deposit with a paying agent a sum sufficient to pay
the principal (and premium, if any) or any 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.
(d) Anything in
this Section to the contrary notwithstanding, the Company may, at any time, for the purpose of obtaining the satisfaction and discharge
of this Indenture with respect to one or more or all series of Securities hereunder, or for any other reason, pay or cause to be
paid to the Trustee all sums held in trust for such series by it or any paying agent hereunder as required by this Section, such
sums to be held by the Trustee upon the trusts herein contained, and upon such payment by any paying agent to the Trustee, such
paying agent shall be released from all further liability with respect to such money.
(e) Anything in
this Section to the contrary notwithstanding, the agreement to hold sums in trust as provided in this Section is subject to the
provisions of Section 12.03 and Section 12.04.
SECTION 4.04. Statement as to Compliance.
The Company will deliver to the Trustee,
within 120 days after the end of each fiscal year of the Company, commencing with the fiscal year ending in the year during which
the first series of Securities is issued hereunder (but in no event more than one year from the issuance of the first series hereunder),
a written statement signed by the Chief Executive Officer or other principal executive officer and by the Chief Financial Officer
or other principal financial officer or principal accounting officer of the Company, stating, as to each signer thereof, that:
(a) a review of
the activities of the Company during such year and of performance under this Indenture has been made under his or her supervision;
and
(b) to the best
of his or her knowledge, based on such review, the Company has fulfilled all 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 him or her
and the nature and status thereof and the proposed steps to cure such default.
SECTION 4.05. Corporate Existence.
Subject to the provisions of Article 11,
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 and rights (charter and statutory) and franchises of
its Subsidiaries; provided, that the Company shall not be required to, or to cause any Subsidiary to, preserve any right or franchise
or to keep in full force and effect the corporate existence of any Subsidiary if the Company shall determine that the keeping in
existence or preservation thereof is no longer desirable in or consistent with the conduct of the business of the Company.
SECTION 4.06. Waiver of Covenants.
The Company may omit in any particular
instance to comply with any covenant or condition set forth herein if before or after the time for such compliance the holders
of a majority in principal amount of the Securities of all series affected thereby then Outstanding shall either waive such compliance
in such instance or generally waive compliance with such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such covenant or condition shall remain in full force and effect.
ARTICLE 5
SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
SECTION 5.01. Securityholder Lists.
The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee as the Trustee may request in writing, a list, in such form and as of such
date as the Trustee may reasonably require, of all information in the possession or control of the Company as to the names and
addresses of the holders of Registered Securities of a particular series specified by the Trustee; provided, that if and so long
as the Trustee shall be the Security Registrar with respect to such series, such list shall not be required to be furnished.
SECTION 5.02. Preservation and Disclosure of Lists.
(a) The Trustee
shall preserve, in as current a form as is reasonably practicable, all information as to the names and addresses of the holders
of each series of Securities contained in the most recent list furnished to it as provided in Section 5.01 or received by the Trustee
in its capacity as Security Registrar. The Trustee may destroy any list furnished to it as provided in Section 5.01 upon receipt
of a new list so furnished.
(b) Securityholders
may communicate as provided in Section 312(b) of the Trust Indenture Act with other securityholders with respect to their rights
under this Indenture or under the Securities. The Company, the Trustee, the Security Registrar and anyone else shall have the protection
of Section 312(c) of the Trust Indenture Act with respect to the sending of any material pursuant to a request made pursuant to
Section 312(b) of the Trust Indenture Act.
SECTION 5.03. Reports by the Company.
The Company covenants so long as Securities
are Outstanding:
(a) to 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) that the Company may be required to file with the Commission pursuant to Section
13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant
to either of such sections, then to file with the Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic information, documents and reports that may be required
pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(b) to file with
the Trustee and the Commission, in accordance with the rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the Company with the conditions and covenants provided
for in this Indenture as may be required from time to time by such rules and regulations;
(c) to transmit
by mail, or, in the case of Global Securities, by notice delivered in accordance with the applicable procedures of the U.S. Depositary,
to all the holders of Registered Securities of each series, as the names and addresses of such holders appear on the registry books,
within 30 days after the filing thereof with the Trustee, such summaries of any information, documents and reports required to
be filed by the Company with respect to each such series pursuant to subsections (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission; and
(d) Delivery of any 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).
The Trustee shall have no liability or responsibility for the filing, timeliness, or content of such reports.
SECTION 5.04. Reports by the Trustee.
(a) On or about
May 15th in each calendar year, so long as any Securities are outstanding hereunder, commencing in the year following the execution
of this Indenture, the Trustee shall transmit by mail, first class postage prepared, to the securityholders, as their names appear
upon the Security Register or in the case of Global Securities, electronically, a brief report to the extent required under Section
313(a) of the Trust Indenture Act, detailing certain events that occurred within the previous 12 months.
(b) The Trustee
shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(c) A copy of each
such report shall, at the time of such transmission to securityholders, be filed by the Trustee with the Company, with each stock
exchange upon which any Securities are listed (if so listed) and also with the Commission. The Company agrees to notify the Trustee
when any Securities become listed (or delisted) on any stock exchange.
ARTICLE 6
REMEDIES
SECTION 6.01. Events of Default; Acceleration of Maturity.
In case one or more of the following Events
of Default with respect to a particular series shall have occurred and be continuing:
(a) default in (i)
the payment of the principal of (or premium, if any, on) any of the Securities of such series as and when the same shall become
due and payable either at maturity, upon redemption, by declaration or otherwise or (ii) any payment required by any sinking or
analogous fund established with respect to that series;
(b) default in the
payment of any installment of interest upon any of the Securities of such series as and when the same shall become due and payable,
and continuance of such default for a period of 90 days;
(c) failure on the
part of the Company duly to observe or perform any other of the covenants or agreements on the part of the Company contained in
the Securities or in this Indenture for a period of 90 days after the date on which written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the Trustee, or to the Company and the Trustee by the holders
of at least 25% in aggregate principal amount of the Securities of that series at the time Outstanding;
(d) a court having
jurisdiction in the premises shall enter a decree or order for relief in respect of the Company or the Material Subsidiary in an
involuntary case or proceeding under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Company or any Material
Subsidiary or for any substantial part of their respective property, or ordering the winding-up or liquidation of its affairs and
such decree or order shall remain unstayed and in effect for a period of 60 consecutive days;
(e) the Company
or the Material Subsidiary shall commence a voluntary case or proceeding under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or shall consent to the entry of a decree or order for relief in an involuntary case under any
such law, or shall consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or similar official) of the Company or the Material Subsidiary or for any substantial part of their respective property,
or shall make any general assignment for the benefit of creditors; or
(f) any other Event
of Default provided with respect to Securities of that series;
then, if an Event of Default described
in clause (a), (b), (c) or (f) shall have occurred and be continuing, and in each and every such case, unless the principal amount
of all the Securities of such series shall have already become due and payable, either the Trustee or the holders of not less than
25% in aggregate principal amount of the Securities of that series then Outstanding hereunder, by notice in writing to the Company
(and to the Trustee if given by securityholders) may declare the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) of that series to be due and
payable immediately, and upon any such declaration the same shall become and shall be immediately due and payable, anything in
this Indenture or in the Securities of such series contained to the contrary notwithstanding; or, if an Event of Default described
in clause (d) or (e) shall have occurred and be continuing, and in each and every such case, unless the principal of all the Securities
of such series shall have already become due and payable, the principal amount of all the Securities (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities) shall be automatically deemed
immediately due and payable.
SECTION 6.02. Rescission and Annulment.
The provisions in Section 6.01 are subject
to the condition that if, at any time after the principal of the Securities of any one or more of all series, as the case may be,
shall have been so declared due and payable, and before any judgment or decree for the payment of the moneys due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall deposit with the Trustee a sum sufficient to pay all
matured installments of interest upon all the Securities of such series or of all the Securities, as the case may be, and the principal
of (and premium, if any, on) all Securities of such series or of all the Securities, as the case may be (or, with respect to Original
Issue Discount Securities, such lesser amount as may be specified in the terms of such Securities), which shall have become due
otherwise than by acceleration (with interest upon such principal and premium, if any) and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest, at the same rate as the rate of interest specified
in the Securities of such series or all Securities, as the case may be (or, with respect to Original Issue Discount Securities,
at the rate specified in the terms of such Securities for interest on overdue principal thereof upon maturity, redemption or acceleration
of such series, as the case may be), to the date of such payment or deposit, and such amount as shall be sufficient to cover reasonable
compensation to the Trustee, its agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances
made, by the Trustee except as a result of its negligence or willful misconduct, and any and all defaults under the Indenture,
other than the non-payment of the principal of Securities that has become due by acceleration, shall have been remedied; then and
in every such case the holders of a majority in aggregate principal amount of the Securities of such series (or of all the Securities,
as the case may be) then Outstanding, by written notice to the Company and to the Trustee, may waive all defaults with respect
to that series or with respect to all Securities, as the case may be in such case, treated as a single class and rescind and annul
such declaration and its consequences; but no such waiver or rescission and annulment shall extend to or shall affect any subsequent
default or shall impair any right consequent thereon.
In case the Trustee shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been discontinued or abandoned because of such rescission
and annulment or for any other reason or shall have been determined adversely to the Trustee, then and in every such case the Company,
the Trustee and the securityholders, as the case may be, shall be restored respectively to their former positions and rights hereunder,
and all rights, remedies and powers of the Company, the Trustee and the securityholders, as the case may be, shall continue as
though no such proceedings had been taken.
SECTION 6.03. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if:
(a) default is made
in the payment of any installment of interest on any Security when such interest becomes due and payable and such default continues
for a period of 90 days,
(b) default is made
in the payment of the principal or premium, if any, of any Security at the maturity thereof, including any maturity occurring by
reason of a call for redemption or otherwise, or
(c) default is made
in the deposit of any sinking fund payment when and as due by the terms of a Security, the Company will, upon demand of the Trustee,
pay to it, for the benefit of the holders of such Securities and any coupons appertaining thereto, the whole amount that shall
have become due and payable on such Securities and coupons for principal or premium, if any, and interest, with interest upon the
overdue principal and, to the extent that payment of such interest shall be legally enforceable, upon overdue installments of interest,
at the rate borne by such Securities; and, in addition thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an express trust, may institute a judicial proceeding
for the collection of the sums so due and unpaid, and may prosecute such proceedings to judgment or final decree, and may enforce
the same against the Company or any other obligor upon the 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 the Securities, wherever situated.
If an Event of Default occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the securityholders 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 6.04. Trustee May File Proofs of Claim.
In the case of the pendency of a 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 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 overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
(a) to file and
prove a claim for the whole amount of principal and premium, if any, and any interest owing and unpaid in respect of the Securities
and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Trustee (including
any claim for the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel) and of
the holders of Securities and coupons allowed in such judicial proceeding; and
(b) to collect and
receive any moneys or other property payable or deliverable on any such claims and to distribute the same;
and any receiver, assignee, trustee, liquidator
or sequestrator (or other similar official) in any such judicial proceeding is hereby authorized by each holder of Securities and
coupons to make such payments to the Trustee, and in the event that the Trustee shall consent to the making of such payments directly
to the holders of Securities and coupons, 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 hereunder. To the extent
that such payment of reasonable compensation, expenses, disbursements, advances and other amounts out of the estate in any such
proceedings 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, moneys, securities and other property which the holders of the Securities and coupons may be entitled
to receive in such proceedings, whether in liquidation or under any plan or reorganization or arrangements or otherwise.
Nothing herein contained shall be deemed
to authorize the Trustee to authorize or consent to or accept or adopt on behalf of the holder of a Security or a coupon any plan
of reorganization, arrangement, adjustment or composition affecting the Securities or coupons or the rights of any holder thereof,
or to authorize the Trustee to vote in respect of the claim of any holder of a Security or a coupon in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession
of Securities or Coupons.
All rights of action and claims under this
Indenture or the Securities or coupons may be prosecuted and enforced by the Trustee without the possession of any of the Securities
or coupons or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall
be brought in its own name as trustee of an express trust, and any recovery of judgment shall, after provision for the payment
of the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the Securities and coupons in respect of which such judgment has been recovered.
SECTION 6.06. Application of Money Collected.
Any money collected by the Trustee pursuant
to this Article shall be applied in the following order, at the date or dates fixed by the Trustee and, in case of the distribution
of such money on account of principal or premium, if any, or any interest, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due
the Trustee (acting in any capacity) hereunder.
SECOND: To the payment of all Senior Indebtedness
of the Company if and to the extent required by Article 16;
THIRD: To the payment of the amounts then
due and unpaid upon the Securities for principal of and premium, if any, and any interest on the Securities and coupons, in respect
of which or for the benefit of which such money has been collected, ratably, without preference or priority of any kind, according
to the amounts due and payable on such Securities and coupons, for principal and any interest, respectively; and
FOURTH: To the Company or its successors
or assigns, or to whomsoever may be lawfully entitled to receive the same.
SECTION 6.07. Limitation on Suits.
No holder of any Security of any series
or any related coupons shall have any right to institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such holder
has previously given written notice to the Trustee of a continuing Event of Default;
(2) the holders
of not less than 25% in principal amount of the Outstanding Securities of that series shall have made written request to the Trustee
to institute proceedings in respect of such Event of Default in its own name as Trustee hereunder;
(3) such holder
or holders have offered to the Trustee security indemnity acceptable to it against the costs, expenses and liabilities to be incurred
in compliance with such request;
(4) the Trustee
for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceedings; and
(5) no direction
inconsistent with such written request has been given to the Trustee during such 60-day period by the holders of a majority in
aggregate principal amount of the Outstanding Securities;
it being understood and intended that no
one or more such holders of Securities shall have any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of such holders of Securities or to obtain or to seek
to obtain priority or preference over any other of such holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such holders of Securities and the Trustee shall not be obligated
to determine if any action of holders is prejudicial to any other holder.
SECTION 6.08. Unconditional Right of Securityholders to
Receive Principal and Interest.
Notwithstanding any other provision in
this Indenture, the holder of any Security or coupon shall have the right, which is absolute and unconditional, to receive payment
of the principal of and premium, if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security or payment
of such coupon on the respective stated maturities expressed in such Security or coupon (or, in the case of redemption, on the
redemption date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the
consent of such holder.
SECTION 6.09. Restoration of Rights and Remedies.
If the Trustee or any holder of a Security
or coupon has instituted any proceeding to enforce any right or remedy under this Indenture and such proceeding has been discontinued
or abandoned for any reason, or has been determined adversely to the Trustee or to such holder, then and in every such case the
Company, the Trustee and the holders of Securities and coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Trustee and the holders
shall continue as though no such proceeding has been instituted.
SECTION 6.10. Rights and Remedies Cumulative.
Except as provided in Section 2.09, no
right or remedy herein conferred upon or reserved to the Trustee or to the holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment
of any right or remedy hereunder or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or
of any holder of any Security or coupon to exercise any right or remedy accruing upon any Default shall impair any such right or
remedy or constitute a waiver of any such Default or any acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the holders of Securities or coupons may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the holders of Securities or coupons, as the case may be.
SECTION 6.12. Control by Securityholders.
The holders of a majority in principal
amount of Outstanding Securities of each 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, provided that:
(1) such direction
shall not be in conflict with any statute, rule of law or with this Indenture;
(2) the Trustee
may take any other action deemed proper by the Trustee which is not inconsistent with such direction; and
(3) the Trustee
need not take any action which it in good faith determines might involve it in personal liability or be unjustly prejudicial to
the securityholders not consenting.
Upon receipt by the Trustee of any such
direction with respect to Securities of a series all or part of which is represented by a temporary Global Security or a permanent
Global Security, the Trustee shall establish a record date for determining holders of Outstanding Securities of such series entitled
to join in such direction, which record date shall be at the close of business on the day the Trustee receives such direction.
The holders on such record date, or their duly designated proxies, and only such persons, shall be entitled to join in such direction,
whether or not such holders remain holders after such record date; provided that, unless such majority in principal amount shall
have been obtained prior to the day which is 90 days after such record date, such direction shall automatically and without further
action by any holder be cancelled and of no further effect. Nothing in this paragraph shall prevent a holder, or a proxy of a holder,
from giving, after expiration of such 90-day period, a new direction identical to a direction which has been cancelled pursuant
to the proviso to the preceding sentence, in which event a new record date shall be established pursuant to the provisions of this
Section 6.12.
SECTION 6.13. Waiver of Past Defaults.
The holders of a majority in principal
amount of the Securities of each series at the time Outstanding may, on behalf of the holders of all the Securities of that series
and any coupons appertaining thereto, waive any past default hereunder and its consequences, except a default:
(1) in the payment
of the principal of, premium, if any, or any interest on any Security;
(2) described in
clauses (d) or (e) of Section 6.01; or
(3) in respect of
a covenant or provision hereof that pursuant to Article 10 cannot be modified or amended without the consent of the holder of each
Outstanding Security affected.
Upon any such waiver, such default shall
cease to exist, and any Default or Event of Default arising therefrom shall be deemed to have been cured, for every purpose of
this Indenture, but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.
SECTION 6.14. Undertaking for Costs.
All parties to this Indenture agree, and
each holder of any Security or coupon by his or her acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any party litigant in such suit of an undertaking to
pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys’
fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted
by any holder, or group of holders, holding in the aggregate more than 10% in principal amount of the Outstanding Securities of
any series, or to any suit instituted by any holder of any Securities or coupons for the enforcement of the payment of the principal
of, premium, if any, or any interest on any Security or the payment of any coupon on or after the respective stated maturities
expressed in such Security or coupon (or, in the case of redemption, on or after the redemption date, except, in the case of a
partial redemption, with respect to the portion not so redeemed).
SECTION 6.15. 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 laws wherever enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may lawfully do so) hereby expressly waives all benefits
or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted
to the Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
ARTICLE 7
CONCERNING THE TRUSTEE
SECTION 7.01. Duties and Responsibilities of Trustee.
(a) The Trustee,
prior to the occurrence of an Event of Default of a particular series and after the curing of all Events of Default of such series
which may have occurred, undertakes to perform such duties and only such duties with respect to such series as are specifically
set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the Trustee. In
the absence of negligence or willful misconduct on the part of the Trustee, the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, upon any certificates or opinions furnished to the Trustee
and conforming to the requirements of this Indenture; but in the case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the Trustee shall only be under a duty to examine the same to
determine whether or not they conform to the requirements of this Indenture.
(b) In case an Event
of Default with respect to a particular series has occurred (which has not been cured), the Trustee shall exercise with respect
to such series such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the conduct of his own affairs.
(c) No provisions
of this Indenture shall be construed to relieve the Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that:
(1) prior to the
occurrence of an Event of Default with respect to a particular series and after the curing of all Events of Default with respect
to such series which may have occurred, the duties and obligations of the Trustee with respect to such series shall be determined
solely by the express provisions of this Indenture, and the Trustee shall not be liable except for the performance of such duties
and obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee;
(2) the Trustee
shall not be liable for any error of judgment made in good faith by it unless it shall be proved that the Trustee was negligent
in ascertaining the pertinent facts; and
(3) the Trustee
shall not be liable with respect to any action taken or omitted to be taken by it in good faith in accordance with the direction
of the holders of Securities pursuant to Section 6.12 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture.
(d) No provision
of this Indenture shall be construed as requiring the Trustee to expend or risk its own funds or otherwise to incur any personal
financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
SECTION 7.02. Reliance on Documents, Opinions, etc.
Subject to the provisions of Section 7.01:
(a) the Trustee
may rely conclusively and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, bond, debenture, note, coupon or other paper or document believed by it to be
genuine and to have been signed or presented by the proper party or parties, and the Trustee need not investigate any fact or matter
stated in any document;
(b) any request,
direction, order or demand of the Company mentioned herein shall be sufficiently evidenced by a Company Request or Company Order
(unless other evidence in respect thereof be herein specifically prescribed); and any Board Resolution may be evidenced to the
Trustee by a copy thereof certified by the Secretary or any Assistant Secretary of the Company; and 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 rely upon an Officer’s Certificate;
(c) the Trustee
may consult with counsel and the written advice of such counsel and 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;
(d) the Trustee
shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request, order or direction
of any of the holders of any Securities or any related coupons pursuant to the provisions of this Indenture, unless such holders
shall have offered to the Trustee security or indemnity satisfactory to the Trustee against the losses, costs, expenses and liabilities
which might be incurred therein or thereby;
(e) the Trustee
shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture, note, coupon or other paper or documents, 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;
(f) 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;
(g) the Trustee
shall not be liable for any action taken, suffered or omitted to be taken by it in good faith and believed by it to be authorized
or within the discretion or rights or powers conferred upon it by this Indenture;
(h) in no event
shall the Trustee be liable to any person for special, punitive, indirect, consequential or incidental loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Trustee has been advised of the likelihood of such loss or
damage and regardless of the form of action;
(i) the Trustee
shall not be required to give any bond or surety in respect of the execution of the trusts and powers or otherwise in respect of
the Indenture; and
(j) the Trustee shall not be deemed to
have notice of any default hereunder or Event of Default unless written notice of any event which is in fact such a default or
Event of Default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities
and this Indenture.
SECTION 7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the
Securities, other than the Trustee’s certificate of authentication, and in any coupons shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for the correctness of the same. The Trustee makes no representations as
to the validity or sufficiency of this Indenture or of the Securities or coupons, provided that the Trustee shall not be relieved
of its duty to authenticate Securities only as authorized by this Indenture. The Trustee shall not be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 7.04. Ownership of Securities.
The Trustee, any authenticating agent,
any paying agent, any Security Registrar or any other agent of the Company or of the Trustee, in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons with the same rights it would have if it were not Trustee, authenticating
agent, paying agent, Security Registrar or such other agent of the Company or of the Trustee.
SECTION 7.05. Moneys to be Held in Trust.
Subject to the provisions of Section 12.04
hereof, all moneys received by the Trustee or any paying agent shall, until used or applied as herein provided, be held in trust
for the purposes for which they were received, but need not be segregated from other funds except to the extent required by law.
Neither the Trustee nor any paying agent shall be under any liability for interest on any moneys received by it hereunder except
such as it may agree in writing with the Company to pay thereon.
SECTION 7.06. Compensation, Expenses and Indemnity of Trustee.
The Company covenants and agrees to pay
to the Trustee (acting in any capacity hereunder) from time to time, and the Trustee shall be entitled to, such compensation for
all services rendered by it hereunder as the Company and the Trustee shall from time to time agree in writing (which to the extent
permitted by law shall not be limited by any provision of law in regard to the compensation of a trustee of an express trust),
and, except as otherwise expressly provided, the Company shall reimburse the Trustee forthwith upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in accordance with any of the provisions of this Indenture
(including the reasonable compensation and the expenses and disbursements of its counsel and of all persons not regularly in its
employ) except any such expense, disbursement or advance as may arise from its negligence or willful misconduct. If any property
other than cash shall at any time be subject to the lien of this Indenture, the Trustee, if and to the extent authorized by a receivership
or bankruptcy court of competent jurisdiction or by the supplemental instrument subjecting such property to such lien, shall be
entitled to make and to be reimbursed for, advances for the purpose of preserving such property or of discharging tax liens or
other prior liens or encumbrances thereon. The Company also covenants to indemnify the Trustee (acting in any capacity hereunder)
for, and to hold it harmless against, any and all loss, damage, claims, liability, cost or expense (including reasonable and documented
attorneys’ fees and expenses and court costs), including taxes (other than taxes based upon, measured or determined by, the
income of the Trustee) incurred without negligence or willful misconduct on the part of the Trustee, arising out of or in connection
with the acceptance or administration of this trust, including the costs and expenses of defending itself against any claim of
liability and enforcing the provisions of this Section 7.06. The obligations of the Company under this Section shall constitute
additional indebtedness hereunder. Such additional indebtedness shall be secured by a lien prior to that of the Securities upon
all property and funds held or collected by the Trustee as such, except funds held in trust for the benefit of the holders of particular
Securities.
To secure the Company’s obligations
under this Section, the Trustee shall have a senior claim to which the Securities are hereby made subordinate on all money or property
held or collected by the Trustee, except that held in trust to pay principal of (and premium, if any) and interest, if any, on
particular Securities.
When the Trustee incurs expenses or renders
services after an Event of Default, the expenses and the compensation for the services are intended to constitute expenses of administration
under any bankruptcy law.
The Company’s obligations under this
Section 7.06 shall survive satisfaction and discharge of the Indenture, payment of the Securities and any resignation or removal
of the Trustee hereunder.
SECTION 7.07. Officer’s Certificate as Evidence.
Subject to the provisions of Section 7.01,
whenever in the administration of the provisions of this Indenture the Trustee shall deem it necessary or desirable that a matter
be proved or established prior to taking or suffering any action to be taken hereunder, such matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by an Officer’s Certificate
delivered to the Trustee, and such certificate shall be full warrant to the Trustee for any action taken, suffered or omitted by
it under the provisions of this Indenture upon the faith thereof.
SECTION 7.08. Disqualifications; Conflicting Interest of
Trustee.
If the Trustee has or shall acquire any
“conflicting interest” within the meaning of the Trust Indenture Act, the Trustee and the Company shall in all respects
comply with the provisions of Section 310(b) of the Trust Indenture Act.
SECTION 7.09. Eligibility of Trustee.
There shall at all times be a Trustee hereunder
which shall be a corporation organized and doing business under the laws of the United States or of any State or Territory thereof
or of the District of Columbia, which (a) is authorized under such laws to exercise corporate trust powers, (b) is subject to supervision
or examination by federal, state, territorial or District of Columbia authority, (c) shall have at all times a combined capital
and surplus of not less than $50,000,000 and (d) shall not be the Company or any person directly or indirectly controlling, controlled
by or under common control with the Company. If such corporation publishes reports of condition at least annually, pursuant to
law, or to the requirements of the aforesaid supervising or examining authority, then for the purposes of this Section, the combined
capital and surplus of such corporation at any time shall be deemed to be its combined capital and surplus as set forth in its
most recent report of condition so published. In case at any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 7.10.
SECTION 7.10. Resignation or Removal of Trustee.
(a) The Trustee,
or any trustee or trustees hereafter appointed, may at any time resign with respect to one or more or all series by giving written
notice of resignation to the Company. Upon receiving such notice of resignation, the Company shall promptly appoint a successor
trustee with respect to the applicable series by written instrument, in duplicate, executed by order of the Board of Directors,
one copy of which instrument shall be delivered to the resigning Trustee and one copy to the successor trustee. If no successor
trustee shall have been so appointed and have accepted appointment within 30 days after the mailing of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee. All fees costs, and expenses
(including attorneys’ fees and expenses) incurred in connection with such petition shall be paid by the Company.
(b) In case at any
time any of the following shall occur:
(1) the Trustee
shall fail to comply with the provisions of Section 310(b) of the Trust Indenture Act, as specified in Section 7.08 with respect
to any series of Securities after written request therefor by the Company or by any securityholder who has been a bona fide holder
of a Security or Securities of such series for at least six months,
(2) the Trustee
shall cease to be eligible in accordance with the provisions of Section 7.09 with respect to any series of Securities and shall
fail to resign after written request therefor by the Company or by any such securityholder, or
(3) the Trustee
shall become incapable of acting with respect to any series of Securities, or shall be adjudged a bankrupt or insolvent, or a receiver
of the Trustee or of its property shall be appointed, or any public officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or liquidation, then, in any such case, upon reasonable written
notice, the Company may remove the Trustee with respect to the applicable series of Securities and appoint a successor trustee
with respect to such series by written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the provisions of
Section 6.14, any securityholder of such series who has been a bona fide holder of a Security or Securities of the applicable series
for at least six months may, on behalf of himself or herself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor trustee with respect to such series. Such court
may thereupon, after such notice, if any, as it may deem proper and prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders
of a majority in aggregate principal amount of the Securities of all series (voting as one class) at the time Outstanding may at
any time remove the Trustee with respect to Securities of all series and appoint a successor trustee with respect to the Securities
of all series.
(d) Any resignation
or removal of the Trustee and any appointment of a successor trustee pursuant to any of the provisions of this Section shall become
effective upon the appointment of a successor trustee and the acceptance of appointment by the successor trustee as provided in
Section 7.11.
SECTION 7.11. Acceptance by Successor Trustee.
Any successor trustee appointed as provided
in Section 7.10 shall execute, acknowledge and deliver to the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the predecessor trustee with respect to all or any applicable
series shall become effective and such successor trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, duties and obligations with respect to such series of its predecessor hereunder, with like effect as if
originally named as trustee herein; but, nevertheless, on the written request of the Company or of the successor trustee, the predecessor
trustee shall, upon payment of any amounts then due it pursuant to the provisions of Section 7.06, execute and deliver an instrument
transferring to such successor trustee all the rights and powers of the predecessor trustee. Upon request of any such successor
trustee, the Company shall execute any and all instruments in writing in order more fully and certainly to vest in and confirm
to such successor trustee all such rights and powers. Any trustee, including the initial Trustee, ceasing to act shall, nevertheless,
retain a lien upon all property or funds held or collected by such trustee to secure any amounts then due it pursuant to the provisions
of Section 7.06.
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 predecessor Trustee and
each successor trustee with respect to the Securities of any applicable series shall execute and deliver a supplemental indenture
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and
duties of the predecessor Trustee with respect to the Securities of any series as to which the predecessor Trustee is not retiring
shall continue to be vested in the predecessor Trustee, and shall add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts hereunder by more than one trustee, it being understood
that nothing herein or in such supplemental indenture shall constitute such trustees co-trustees of the same trust and that each
such trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered
by any other such trustee.
No successor trustee shall accept appointment
as provided in this Section unless at the time of such acceptance such successor trustee shall be qualified and eligible under
the provisions of this Article 7.
Upon acceptance of appointment by a successor
trustee as provided in this Section, the Company shall mail notice of the succession of such trustee hereunder to all holders of
Securities of any applicable series as the names and addresses of such holders shall appear on the registry books. If the Company
fails to mail such notice in the prescribed manner within 10 days after the acceptance of appointment by the successor trustee,
the successor trustee shall cause such notice to be so mailed at the expense of the Company.
SECTION 7.12. Successor by Merger, etc.
Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder; provided such corporation shall be qualified and eligible under
the provisions of this Article 7, without the execution or filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding. In case any Securities shall have been authenticated, but not delivered,
by the Trustee then in office, any successor by merger, conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect as if such successor Trustee had itself authenticated
such Securities.
SECTION 7.13. Limitations on Rights of Trustee as Creditor.
The Trustee shall comply with Section 311(a)
of the Trust Indenture Act, excluding any creditor relationship described in Section 311(b) of the Trust Indenture Act. A Trustee
who has resigned or been removed shall be subject to Section 311(a) of the Trust Indenture Act to the extent included therein.
SECTION 7.14. Notice of Default.
Within 90 days after the occurrence of
any default on a series of Securities hereunder, the Trustee shall transmit to all securityholders of that series, in the manner
and to the extent provided in Section 15.04, notice of such default hereunder known to the Trustee, unless such default shall have
been cured or waived; provided, that except in the case of a default in the payment of the principal of or interest on any Security
or on the payment of any sinking or purchase fund installment, the Trustee shall be protected in withholding such notice if and
so long as the Trustee in good faith determines that the withholding of such notice is in the interests of the securityholders;
and provided, further, that in the case of any default of the character specified in clause (c) of Section 6.01 no such notice
to securityholders shall be given until at least 30 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.
SECTION 7.15. Appointment of Authenticating Agent.
The Trustee may appoint an authenticating
agent or agents (which may be an affiliate or affiliates 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 such series issued upon original issue or upon
exchange, registration of transfer or partial redemption thereof or pursuant to Section 2.09, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee’s certificate of authentication, such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an authenticating agent and a certificate of authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent shall be acceptable to the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America or of any State or Territory thereof or of the District of Columbia, which
(a) is authorized under such laws to exercise corporate trust powers or to otherwise act as authenticating agent, (b) is subject
to supervision or examination by federal, state, territorial or District of Columbia authority, and (c) shall have at all times
a combined capital and surplus of not less than $50,000,000. If such authenticating agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such authenticating agent shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time an authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, such authenticating agent shall resign immediately in the manner and with the effect specified
in this Section.
Any corporation into which an authenticating
agent may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which such authenticating agent shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of such 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 such authenticating agent.
An authenticating agent may resign at any
time by giving written notice thereof to the Trustee and to 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 to the Company. Upon receiving such a notice
of resignation or upon such a termination, or in case at any time such authenticating agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor authenticating agent which shall be acceptable to the
Company and shall promptly give notice of such appointment to all holders of Securities in the manner and to the extent provided
in Section 15.04. 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 to each authenticating
agent from time to time reasonable compensation for its services under this Section.
If an appointment with respect to one or
more series is made pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to the Trustee’s
certificate of authentication, an alternative certificate of authentication in the following form:
This is one of the Securities of the series
designated therein referred to in the within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
By:_______________________
Authorized Signatory
If all of the Securities of a series may
not be originally issued at one time, and 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 by the Company in writing, shall appoint in accordance with this Section an authenticating agent (which,
if so requested by the Company, shall be such affiliate of the Company) having an office in a Place of Payment designated by the
Company with respect to such series of Securities, provided that the terms and conditions of such appointment are acceptable to
the Trustee.
ARTICLE 8
CONCERNING THE SECURITYHOLDERS
SECTION 8.01. Action by Securityholders.
Whenever in this Indenture it is provided
that the holders of a specified percentage in aggregate principal amount of the Securities of any or all series may take any action
(including the making of any demand or request, the giving of any authorization, notice, consent or waiver or the taking of any
other action), the fact that at the time of taking any such action the holders of such specified percentage have joined therein
may be evidenced (a) by any instrument or any number of instruments of similar tenor executed by securityholders in person or by
agent or proxy appointed in writing, (b) if Securities of a series are issuable as Bearer Securities, by the record of the holders
of Securities voting in favor thereof, either in person or by proxies duly appointed in writing, at any meeting of securityholders
of such series duly called and held in accordance with the provisions of Article 9, or (c) by a combination of such instrument
or instruments and any such record of such a meeting of securityholders.
In determining whether the holders of a
specified percentage in aggregate principal amount of the Securities of any or all series have taken any action (including the
making of any demand or request, the giving of any authorization, direction, notice, consent or waiver or the taking of any other
action), (i) the principal amount of any Original Issue Discount Security that may be counted in making such determination and
that shall be deemed to be outstanding for such purposes shall be equal to the amount of the principal thereof that could be declared
to be due and payable upon an Event of Default pursuant to the terms of such Original Issue Discount Security at the time the taking
of such of such action is evidenced to the Trustee, and (ii) the principal amount of a Security denominated in a foreign currency
or currency unit shall be the U.S. dollar equivalent, determined as of the date of original issuance of such Security in accordance
with Section 2.03(b) hereof, of the principal amount of such Security.
SECTION 8.02. Proof of Execution by Securityholders.
Subject to the provisions of Section 7.01,
Section 7.02 and Section 9.05, proof of the execution of any instrument by a securityholder or its agent or proxy, or of the holding
by any person of a Security, shall be sufficient and conclusive in favor of the Trustee and the Company if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in such manner as shall be satisfactory to the Trustee.
The principal amount and serial numbers
of Registered Securities held by any person, and the date of holding the same, shall be proved by the Security Register. The principal
amount and serial numbers of Bearer Securities held by any person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any trust company, bank, banker or other depositary,
wherever situated, if such certificate shall be deemed by the Trustee to be satisfactory, showing that at the date therein mentioned
such person had on deposit with such depositary, or exhibited to it, the Bearer Securities therein described; or such facts may
be proved by the certificate or affidavit of the person holding such Bearer Securities, if such certificate or affidavit is deemed
by the Trustee to be satisfactory. The Trustee and the Company may assume that such ownership of any Bearer Security continues
until (1) another certificate or affidavit bearing a later date issued in respect of the same Bearer Security is produced, (2)
such Bearer Security is produced to the Trustee by some other person, (3) such Bearer Security is surrendered in exchange for a
Registered Security, or (4) such Bearer Security is no longer Outstanding. The principal amount and serial numbers of Bearer Securities
held by any person, and the date of holding the same, may also be provided in any other manner which the Trustee deems sufficient.
The record of any securityholders’
meeting shall be proved in the manner provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners.
Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Trustee and any agent of the Company or of the Trustee may deem the person
in whose name such Registered Security shall be registered upon the Security Register to be, and may treat him as, the absolute
owner of such Registered Security (whether or not such Security shall be overdue and notwithstanding any notation of ownership
or other writing thereon), for the purpose of receiving payment of or on account of the principal of (and premium, if any) and,
subject to the provisions of Section 2.05, any interest on such Security and for all other purposes; and neither the Company nor
the Trustee nor any agent of the Company or of the Trustee shall be affected by any notice to the contrary. All such payments so
made to any holder for the time being, or upon his or her order, shall be valid and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for moneys payable upon any such Security.
Title to any Bearer Security and any coupons
appertaining thereto shall pass by delivery. The Company, the Trustee and any agent of the Company or of the Trustee may treat
the bearer of any Bearer Security and the bearer of any coupon as the owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever, whether or not such Security or coupon be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice to the contrary.
Notwithstanding the foregoing, with respect
to any temporary or permanent Global Security, nothing herein shall prevent the Company, the Trustee, or any agent of the Company
or of the Trustee, from giving effect to any written certification, proxy or other authorization furnished by a U.S. Depositary,
or impair, as between a U.S. Depositary and holders of beneficial interests in any temporary or permanent Global Security, as the
case may be, the operation of customary practices governing the exercise of the rights of the U.S. Depositary as holder of such
temporary or permanent Global Security.
SECTION 8.04. Company-Owned Securities Disregarded.
In determining whether the holders of the
required aggregate principal amount of Securities have provided any request, demand, authorization, notice, direction, consent
or waiver under this Indenture, Securities which are owned by the Company or any other obligor on the Securities, or by any person
directly or indirectly controlling or controlled by or under direct or indirect common control with the Company or any other obligor
on the Securities, shall be disregarded and deemed not to be Outstanding for the purpose of any such determination, except that
for the purpose of determining whether the Trustee shall be protected in relying on any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which the Trustee knows are so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding for the purposes of this Section if the pledgee shall establish
to the satisfaction of the Trustee the pledgee’s right to vote such Securities and that the pledgee is not a person directly
or indirectly controlling or controlled by or under direct or indirect common control with the Company or any such other obligor.
In the case of a dispute as to such right, any decision by the Trustee taken upon the advice of counsel shall provide full protection
to the Trustee.
SECTION 8.05. Revocation of Consents; Future Securityholders
Bound.
At any time prior to the taking of any
action by the holders of the percentage in aggregate principal amount of the Securities specified in this Indenture in connection
with such action, any holder of a Security, the identifying number of which is shown by the evidence to be included in the Securities
the holders of which have consented to such action, may, by filing written notice with the Trustee at its office and upon proof
of holding as provided in Section 8.02, revoke such action so far as concerns such Security. Except as aforesaid any such action
taken by the holder of any Security shall be conclusive and binding upon such holder and upon all future holders and owners of
such Security and of any Security issued upon registration of transfer of or in exchange or substitution therefor in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in reliance thereon, irrespective of whether or not
any notation in regard thereto is made upon such Security. Any action taken by the holders of the percentage in aggregate principal
amount of the Securities specified in this Indenture in connection with such action shall be conclusively binding upon the Company,
the Trustee and the holders of all the Securities.
SECTION 8.06. Record Date.
The Company may, but shall not be obligated
to, set a record date for purposes of determining the identity of holders of Securities of any series entitled to vote or consent
to any action by vote or consent or to otherwise take any action under this Indenture authorized or permitted by Section 6.12 and
Section 6.13 or otherwise under this Indenture. Such record date shall be the later of (i) the date 20 days prior to the first
solicitation of such consent or vote or other action and (ii) the date of the most recent list of holders of such Securities delivered
to the Corporate Trust Office of the Trustee pursuant to Section 5.01 prior to such solicitation. If such a record date is fixed,
those persons who were holders of such Securities at the close of business on such record date shall be entitled to vote or consent
or take such other action, or to revoke any such action, whether or not such persons continue to be holders after such record date,
and for that purpose the Outstanding Securities shall be computed as of such record date.
ARTICLE 9
SECURITYHOLDERS’ MEETINGS
SECTION 9.01. Purposes of Meeting.
A meeting of holders of any or all series
of Securities may be called at any time and from time to time pursuant to the provisions of this Article for any of the following
purposes:
(a) to give any
notice to the Company or to the Trustee, or to give any directions to the Trustee, or to waive any default hereunder and its consequences,
or to take any other action authorized to be taken by securityholders pursuant to any of the provisions of Article 6;
(b) to remove the
Trustee and appoint a successor trustee pursuant to the provisions of Article 7;
(c) to consent to
the execution of an indenture or indentures supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any
other action authorized to be taken by or on behalf of the holders of any specified aggregate principal amount of the Securities
of any or all series, as the case may be, under any other provision of this Indenture or under applicable law.
SECTION 9.02. Call of Meetings by Trustee.
The Trustee may at any time call a meeting
of securityholders of any or all series to take any action specified in Section 9.01, to be held at such time and at such place
in New York, New York or Pittsburgh, Pennsylvania as the Trustee shall determine.
Notice of every meeting of the securityholders of any or all series, setting forth the time and 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 15.04 not less than 20
nor more than 180 days prior to the date fixed for the meeting.
SECTION 9.03. Call of Meetings by Company or Securityholders.
In case at any time the Company, pursuant
to a Board Resolution, or the holders of at least 10% in aggregate principal amount of the Securities of any or all series, as
the case may be, then Outstanding, shall have requested the Trustee to call a meeting of securityholders of any or all series to
take any action authorized in Section 9.01, by written request setting forth in reasonable detail the action proposed to be taken
at the meeting, and the Trustee shall not have provided notice of such meeting in the manner provided in Section 15.04 within 30
days after receipt of such request, then the Company or the holders of such Securities in the amount above specified may determine
the time and the place in New York, New York or Pittsburgh, Pennsylvania for such
meeting and may call such meeting by giving notice thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting.
To be entitled to vote at any meeting of
securityholders a person shall be a holder of one or more Securities of such series Outstanding with respect to which a meeting
is being held or a person appointed by an instrument in writing as proxy by such a holder or holders. The only persons who shall
be entitled to be present or to speak at any meeting of the securityholders 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 9.05. Regulations.
Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem advisable for any meeting of securityholders of
a series, in regard to proof of the holding of Securities 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 deems fit. Except as otherwise permitted or required by any
such regulations, the holding of Securities shall be proved in the manner specified in Article 8 and the appointment of any proxy
shall be proved in the manner specified in Article 8 or by having the signature of the person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Article 8 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face, may be presumed valid and genuine without the proof
specified in Article 8 or other proof.
The Trustee shall, by an instrument in
writing, appoint a temporary chairman of the meeting, unless the meeting shall have been called by the Company or by securityholders
as provided in Section 9.03, in which case the Company or the securityholders calling the meeting, as the case may be, shall in
like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the meeting shall be elected by vote
of the holders of a majority in principal amount of the Securities represented at the meeting and entitled to vote.
Subject to the provisions of Section 8.01
and Section 8.04, at any meeting each securityholder or proxy shall be entitled to one vote for each $1,000 (or the U.S. Dollar
equivalent thereof in connection with Securities issued in a foreign currency or currency unit) Outstanding principal amount of
Securities of such series held or represented by him or her; provided, however, that no vote shall be cast or counted at any meeting
in respect of any Security challenged as not Outstanding and ruled by the chairman of the meeting to be not Outstanding. The chairman
of the meeting shall have no right to vote except as a securityholder or proxy. Any meeting of securityholders duly called pursuant
to the provisions of Section 9.02 or Section 9.03 may be adjourned from time to time, and the meeting may be reconvened without
further notice.
SECTION 9.06. Voting.
The vote upon any resolution submitted
to any meeting of securityholders shall be by written ballot on which shall be subscribed the signatures of the securityholders
or proxies and on which shall be inscribed the identifying number or numbers or to which shall be attached a list of identifying
numbers of the Securities held or represented by them. The chairman of the meeting shall appoint two inspectors of votes who shall
count all votes cast at the meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of securityholders shall be prepared by the secretary of the meeting and there shall be attached to the 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 the notice was mailed as provided in Section 9.02.
The record shall be signed and verified by the chairman and secretary of the meeting and one of the duplicates shall be delivered
to the Company and the other 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 10
SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures without Consent of
Securityholders.
Without the consent of any holders of Securities
or coupons, the Company, when authorized by or pursuant to Board Resolution, and the Trustee may from time to time and at any time
enter into an indenture or indentures supplemental hereto (which shall conform to the provisions of the Trust Indenture Act as
in force at the date of the execution thereof) for one or more of the following purposes:
(a) to evidence
the succession of another corporation to the Company, or successive successions, pursuant to Article 11 hereof, and the assumption
by the successor corporation of the covenants, agreements and obligations of the Company herein and in the Securities;
(b) to add to the
covenants of the Company such further covenants, restrictions, conditions or provisions as its Board of Directors shall consider
to be for the protection of the holders of Securities, and to make the occurrence, or the occurrence and continuance, of a default
in any of such additional covenants, restrictions, conditions or provisions an Event of Default permitting the enforcement of all
or any of the several remedies provided in this Indenture as herein set forth, with such period of grace, if any, and subject to
such conditions as such supplemental indenture may provide;
(c) to add to or
change any of the provisions of this Indenture to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium or interest on Bearer Securities, to permit Bearer
Securities to be issued in exchange for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer
Securities of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated form, provided
that any such action shall not adversely affect the interests of the holders of Securities of any series or any related coupons
in any material respect;
(d) to modify, eliminate
or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under
the Trust Indenture Act, or under any similar federal statute hereafter enacted, and to add to this Indenture such other provisions
as may be expressly permitted by the Trust Indenture Act, excluding however, the provisions referred to in Section 316(a)(2) of
the Trust Indenture Act or any corresponding provision in any similar federal statute hereafter enacted;
(e) to modify, eliminate
or add to any of the provisions of this Indenture, provided that any such change or elimination (i) shall become effective only
when there is no Security of any series Outstanding and created prior to the execution of such supplemental indenture that is entitled
to the benefit of such provision or (ii) shall not apply to any Security Outstanding;
(f) to cure any
ambiguity or to correct or supplement any provision contained herein or in any supplemental indenture which may be defective or
inconsistent with any other provisions contained herein or in any supplemental indenture; to convey, transfer, assign, mortgage
or pledge any property to or with the Trustee; or to make such other provisions in regard to matters or questions arising under
this Indenture, provided such other provisions shall not adversely affect in any material respect the interests of the holders
of the Securities or any related coupons, including provisions necessary or desirable to provide for or facilitate the administration
of the trusts hereunder;
(g) to secure any
series of Security; and
(h) to evidence
and provide for the acceptance and appointment hereunder by a successor trustee with respect to the Securities of one or more series
and to add or change any 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 Section 7.11.
The Trustee is hereby authorized to join
with the Company in the execution of any such supplemental indenture, to make any further appropriate agreements and stipulations
which may be therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any property thereunder,
but the Trustee shall not be obligated to enter into any such supplemental indenture which adversely affects the Trustee’s
own rights, duties or immunities under this Indenture or otherwise. No supplemental indenture shall be effective as against the
Trustee unless and until the Trustee has duly executed and delivered the same.
SECTION 10.02. Supplemental Indentures with Consent of Holders.
With the consent (evidenced as provided
in Section 8.01) of the holders of not less than a majority in aggregate principal amount of the Securities of all series at the
time Outstanding affected by such supplemental indenture (voting as one class), the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or indentures supplemental hereto (which shall conform
to the provisions of the Trust Indenture Act as in force at the date of the execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of any supplemental indenture or of modifying
in any manner the rights of the holders of the Securities of such series and any related coupons under this Indenture; provided,
that no such supplemental indenture shall (1) extend the fixed maturity of any Securities, or reduce the principal amount thereof
or premium, if any, or reduce the rate or extend the time of payment of interest thereon, without the consent of the holder of
each Security so affected, (2) reduce the aforesaid percentage of Securities, the consent of the holders of which is required for
any such supplemental indenture, without the consent of the holders of all Securities then Outstanding, (3) modify the subordination
provisions in a manner adverse to the holders of such Securities, or (4) modify any of the above provisions.
Upon the request of the Company, accompanied
by a copy of a Board Resolution certified by the Secretary or an Assistant Secretary of the Company authorizing the execution of
any such supplemental indenture, and upon the filing with the Trustee of evidence of the consent of securityholders as aforesaid,
the Trustee shall join with the Company in the execution of such supplemental indenture unless such supplemental indenture affects
the Trustee’s own rights, duties or immunities under this Indenture or otherwise, in which case the Trustee may in its discretion,
but shall not be obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent
of the securityholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be
sufficient if such consent shall approve the substance thereof.
Promptly after the execution by the Company
and the Trustee of any supplemental indenture pursuant to the provisions of this Article 10, the Company shall provide notice,
in the manner and to the extent provided in Section 15.04, setting forth in general terms the substance of such supplemental indenture,
to all holders of Securities of each series so affected. Any failure of the Company so to provide such notice, or any defect therein,
shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act; Effect
of Supplemental Indentures.
Any supplemental indenture executed pursuant
to the provisions of this Article 10 shall comply with the Trust Indenture Act, as then in effect. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10 and subject to the provisions in any supplemental indenture relating to
the prospective application of such instrument, this Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties and immunities under this Indenture of the Trustee,
the Company and the holders of Securities theretofore or thereafter authenticated and delivered hereunder and of any coupons appertaining
thereto shall thereafter be determined, exercised and enforced hereunder subject in all respects to such modifications and amendments,
and all the terms and conditions of any such supplemental indenture shall be and be deemed to be part of the terms and conditions
of this Indenture for any and all purposes.
The Trustee, subject to the provisions
of Section 7.01 and Section 7.02, shall be entitled to receive and shall be fully protected in relying upon an Officer’s
Certificate or an Opinion of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of
this Article 10.
SECTION 10.04. Notation on Securities.
Securities of any series authenticated
and delivered after the execution of any supplemental indenture pursuant to the provisions of this Article 10 may bear a notation
in form approved by the Trustee as to any matter provided for in such supplemental indenture. New Securities of any series so modified
as to conform, in the opinion of the Trustee and the Board of Directors, to any modification of this Indenture contained in any
such supplemental indenture may be prepared by the Company, authenticated by the Trustee and delivered, without charge to the securityholders,
in exchange for the Securities of such series then Outstanding.
ARTICLE 11
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 11.01. Company May Consolidate, etc., on Certain
Terms.
The Company covenants that it will not
merge into or consolidate with any other corporation or sell or convey all or substantially all of its assets to any person, firm
or corporation, unless (1) either the Company shall be the continuing corporation, or the successor corporation (if other than
the Company) shall be a corporation organized and existing under the laws of the United States of America or a state thereof or
the District of Columbia and such corporation shall expressly assume the due and punctual payment of the principal of (and premium,
if any, on) and any interest on all the Securities, according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by the Company by supplemental indenture, executed and
delivered to the Trustee by such corporation, and (2) the Company or such successor corporation, as the case may be, shall not,
immediately after such merger or consolidation, or such sale or conveyance, be in default in the performance of any such covenant
or condition.
SECTION 11.02. Successor Corporation Substituted.
In case of any such consolidation, merger,
sale or conveyance and upon any such assumption by the successor corporation, such successor corporation shall succeed to and be
substituted for, and may exercise every right and power of, the Company, with the same effect as if it had been named herein as
the party of the first part. Such successor corporation thereupon may cause to be signed, and may issue either in its own name
or in the name of the Company, any or all of the Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor corporation, instead of the Company, and subject
to all the terms, conditions and limitations in this Indenture prescribed, the Trustee shall authenticate and shall make available
for delivery any Securities which previously shall have been signed and delivered by the officers of the Company to the Trustee
for authentication, and any Securities which such successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Securities so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities theretofore or thereafter issued in accordance with the terms of this Indenture as though all of such
Securities had been issued at the date of the execution thereof.
In case of any such consolidation, merger,
sale or conveyance such changes in phrasing and form (but not in substance) may be made in the Securities thereafter to be issued
as may be appropriate.
SECTION 11.03. Opinion of Counsel and Officer’s Certificate
to Trustee.
The Trustee shall receive an Opinion of
Counsel and Officer’s Certificate as conclusive evidence that any such consolidation, merger, sale or conveyance, and any
such assumption, complies with the provisions of this Article 11 and that all conditions precedent herein provided for relating
to such transaction have been complied with.
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 12.01. Discharge of Indenture.
If at any time:
(a) the Company
shall have delivered to the Trustee for cancellation all Securities of any series theretofore authenticated and all coupons, if
any, appertaining thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered Securities
and maturing after such exchange, whose surrender is not required or has been waived as provided in Section 2.07, (ii) Securities
and coupons that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09, (iii) coupons
appertaining to Securities called for redemption and maturing after the relevant redemption date, whose surrender has been waived
as provided in Section 3.03, and (iv) Securities and coupons 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 4.03), or
(b) all such Securities
of such series and, in the case of (a)(i) or (a)(ii) above, any coupons appertaining thereto not theretofore delivered to the Trustee
for cancellation (i) shall have become due and payable, (ii) are by their terms to become due and payable within one year, or (iii)
are to be called for redemption within one year under arrangements satisfactory to the Trustee for the giving of notice of redemption,
and the Company in the case of (a)(i) or (a)(iii) above shall deposit or cause to be deposited with the Trustee as trust funds
the entire amount (other than moneys repaid by the Trustee or any paying agent to the Company in accordance with Section 12.04)
sufficient to pay at maturity or upon redemption all Securities of such series and coupons not therefore delivered to the Trustee
for cancellation, including principal (and premium, if any) and any interest due or to become due to such date of maturity or date
fixed for redemption, as the case may be, and if in either case the Company shall also pay or cause to be paid all other sums payable
hereunder by the Company with respect to such series, then this Indenture shall cease to be of further effect with respect to the
Securities of such series, and the Trustee, on demand of and at the cost and expense of the Company and subject to Section 15.05,
shall execute such instruments reasonably requested by the Company acknowledging satisfaction of and discharging this Indenture
with respect to the Securities of such series. The Company agrees to reimburse the Trustee for any costs or expenses thereafter
reasonably incurred by the Trustee in connection with this Indenture or the Securities of such series. Notwithstanding the satisfaction
and discharge of this Indenture with respect to the Securities of any series or of all series, the obligations of the Company to
the Trustee under Section 7.06 shall survive.
The Company will deliver to the Trustee
an Officer’s Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided
for relating to the satisfaction and discharge (or any defeasance) of this Indenture have been complied with.
SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of Section 12.03
and 12.04, all moneys deposited with the Trustee pursuant to Section 12.01 shall be held in trust and applied by it to the payment,
either directly or through any paying agent (including the Company acting as its own paying agent), to the persons entitled thereto,
of all sums due and to become due thereon for principal and interest (and premium, if any) for which payment of such money has
been deposited with the Trustee.
SECTION 12.03. Paying Agent to Repay Moneys Held.
In connection with the satisfaction and
discharge of this Indenture with respect to Securities of any series and the payment of all amounts due to the Trustee under Section
7.06, all moneys with respect to such Securities then held by any paying agent under the provisions of this Indenture shall, upon
demand of the Company, be repaid to it or paid to the Trustee and thereupon such paying agent shall be released from all further
liability with respect to such moneys.
SECTION 12.04. Return of Unclaimed Moneys.
Any moneys deposited with or paid to the
Trustee or any paying agent for the payment of the principal of (and premium, if any) or interest on any Security and not applied
but remaining unclaimed for two years after the date upon which such principal (and premium, if any, on) or interest shall have
become due and payable, shall be repaid to the Company by the Trustee or such paying agent on demand, and the holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for any payment which such holder may be entitled
to collect and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon cease.
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Securities Solely Corporate
Obligations.
No recourse under or upon any obligation,
covenant or agreement contained in this Indenture, or in any Security or coupon, or because of any indebtedness evidenced thereby,
shall be had against any incorporator, or against any past, present or future stockholder, officer or director, as such, of the
Company or of any successor corporation, either directly or through the Company or any successor corporation, under any rule of
law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise,
all such liability being expressly waived and released by the acceptance of the Securities or coupons by the holders thereof and
as part of the consideration for the issue of the Securities.
ARTICLE 14
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 14.01. Applicability of Article.
Unless, as specified pursuant to Section
2.03(b), provision is made that either or both of (a) defeasance of the Securities of a series under Section 14.02 and (b) covenant
defeasance of the Securities of a series under Section 14.03 shall not apply to the Securities of a series, then the provisions
of such Section 14.02 and Section 14.03, together with Section 14.04 and Section 14.05, shall be applicable to the Outstanding
Securities of all series upon compliance with the conditions set forth below in this Article 14.
SECTION 14.02. Defeasance and Discharge.
Subject to Section 14.05, the Company may
cause itself to be discharged from its obligations with respect to the Outstanding Securities of any series on and after the date
the conditions precedent set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below
(hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by the Outstanding Securities of such series and to have satisfied all its other
obligations under such Securities and this Indenture insofar as such Securities are concerned (and the Trustee, at the expense
of the Company, shall execute such instruments reasonably requested by the Company acknowledging the same), except for the following
which shall survive until otherwise terminated or discharged hereunder: (a) the rights of holders of Outstanding Securities of
such series to receive, solely from the trust fund described in Section 14.04 and as more fully set forth in such Section, payments
of the principal of and any premium and interest on such Securities when such payments are due, (b) the Company’s obligations
with respect to such Securities under Section 2.07, Section 2.08, Section 2.09, Section 4.02 and Section 4.03 and such obligations
as shall be ancillary thereto, (c) the rights, powers, trusts, duties, immunities and other provisions in respect of the Trustee
hereunder, and (d) this Article 14. Subject to compliance with this Article 14, defeasance with respect to Securities of a series
by the Company is permitted under this Section 14.02 notwithstanding the prior exercise of its rights under Section 14.03 with
respect to the Securities of such series. Following a defeasance, payment of the Securities of such series may not be accelerated
because of an Event of Default.
SECTION 14.03. Covenant Defeasance.
The Company may cause itself to be released
from its obligations under any Sections applicable to Securities of a series that are determined pursuant to Section 2.03(b) to
be subject to this provision with respect to the Outstanding Securities of such series on and after the date the conditions precedent
set forth below are satisfied but subject to satisfaction of the conditions subsequent set forth below (hereinafter, “covenant
defeasance”). For this purpose, such covenant defeasance means that, with respect to the Outstanding Securities of such series,
the Company may omit to comply with and shall have no liability in respect of any term, condition or limitation set forth in any
such Section, whether directly or indirectly by reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
SECTION 14.04. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions precedent
or, as specifically noted below, subsequent to application of either Section 14.02 or Section 14.03 to the Outstanding Securities
of such series:
(a) The Company
shall irrevocably have deposited or caused to be deposited with the Trustee as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely to, the benefit of the holders of such Securities,
(i) money in an amount, (ii) U.S. Government Obligations which through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, not later than one day before the due date of any payment, money in an amount,
or (iii) a combination thereof, sufficient, without reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the Trustee, to pay and discharge, and which shall
be applied by the Trustee to pay and discharge, (1) the principal of and any premium and interest on the Outstanding Securities
of such series to maturity or redemption, as the case may be, and (2) any mandatory sinking fund payments or analogous payments
applicable to the Outstanding Securities of such series on the due dates thereof. Before such a deposit the Company may make arrangements
satisfactory to the Trustee for the redemption of Securities at a future date or dates in accordance with Article 3 which shall
be given effect in applying the foregoing. For this purpose, “U.S. Government Obligations” means securities that are
(x) direct obligations of the United States of America for the payment of which its full faith and credit is pledged or (y) obligations
of a person controlled or supervised by and acting as an agency or instrumentality of the United States of America the payment
of which is unconditionally guaranteed as a full faith and credit obligation by the United States of America, which, in either
case, are not callable or redeemable at the option of the issuer thereof, and shall also include a depository receipt issued by
a bank (as defined in Section 3(a)(2) of the Securities Act) as custodian with respect to any such U.S. Government Obligation or
a specific payment of principal of or interest on any such U.S. Government Obligation held by such custodian for the account of
the holder of such 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 U.S.
Government Obligation or the specific payment of principal of or interest on the U.S. Government Obligation evidenced by such depository
receipt;
(b) No Default,
or event that after notice or lapse of time, or both, would become a Default with respect to the Securities of such series, shall
have happened and be continuing (i) on the date of such deposit or (ii) insofar as Section 6.01(d) and Section 6.01(e) are concerned,
at any time during the period ending on the 123rd day after the date of such deposit or, if longer, ending on the day following
the expiration of the longest preference period applicable to the Company in respect of such deposit (it being understood that
the condition in this clause (b) is a condition subsequent and shall not be deemed satisfied until the expiration of such period);
(c) Such defeasance
or covenant defeasance shall not (i) cause the Trustee for the Securities of such series to have a “conflicting interest”
as defined in Section 310(b) of the Trust Indenture Act or (ii) result in the trust arising from such deposit to constitute, unless
it is qualified as, a regulated investment company under the Investment Company Act of 1940, as amended;
(d) Such defeasance
or covenant defeasance shall not result in a breach or violation of, or constitute a default under, this Indenture or any other
agreement or instrument to which the Company is a party or by which it is bound;
(e) Such defeasance
or covenant defeasance shall not cause any Securities of such series then listed on any registered national securities exchange
under the Exchange Act to be delisted;
(f) In the case
of a defeasance under Section 14.02, the Company shall have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal Revenue Service a ruling, or (y) since the date of this
Indenture there has been a change in the applicable federal income tax law, in either case to the effect that, and based thereon
such opinion shall confirm that, the holders of the Outstanding Securities of such series will not recognize income, gain or loss
for federal income tax purposes as a result of such defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such defeasance had not occurred;
(g) In the case
of covenant defeasance under Section 14.03, the Company shall have delivered to the Trustee an Opinion of Counsel to the effect
that the holders of the Outstanding Securities of such series will not recognize income, gain or loss for federal income tax purposes
as a result of such covenant defeasance and will be subject to federal income tax on the same amounts, in the same manner and at
the same times as would have been the case if such covenant defeasance had not occurred;
(h) Such defeasance
or covenant defeasance shall be effected in compliance with any additional terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 2.03(b); and
(i) The Company
shall have delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions
precedent and subsequent provided for in this Indenture relating to either the defeasance under Section 14.02 or the covenant defeasance
under Section 14.03, as the case may be, have been complied with.
SECTION 14.05. Deposited Money and U.S. Government Obligations
to be Held in Trust; Other Miscellaneous Provisions.
All money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee pursuant to Section 14.04 in respect of the Outstanding Securities
of such series shall be held in trust and applied by the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any paying agent (but not including the Company acting as its own paying
agent) as the Trustee may determine, to the holders of such Securities of all sums due and to become due thereon in respect of
principal and any premium and interest, but such money need not be segregated from other funds except to the extent required by
law.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the money or U.S. Government Obligations deposited pursuant
to Section 14.04 or the principal and interest received in respect thereof.
Anything herein to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company Request any money or U.S. Government Obligations
held by it as provided in Section 14.04 which, in the opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in excess of the amount thereof which would then be
required to be deposited to effect an equivalent defeasance or covenant defeasance, provided that the Trustee shall not be required
to liquidate any U.S. Government Obligations in order to comply with the provisions of this paragraph.
Anything herein to the contrary notwithstanding,
if and to the extent the deposited money or U.S. Government Obligations (or the proceeds thereof) either (i) cannot be applied
by the Trustee in accordance with this Section because of a court order or by operation of Article 16 or (ii) are for any reason
insufficient in amount, then the Company’s obligations to pay principal of and any premium and interest on the Securities
of such series shall be reinstated to the extent necessary to cover the deficiency on any due date for payment. In any such case,
the Company’s interest in the deposited money and U.S. Government Obligations (and proceeds thereof) shall be reinstated
to the extent the Company’s payment obligations are reinstated.
ARTICLE 15
MISCELLANEOUS PROVISIONS
SECTION 15.01. Benefits of Indenture Restricted to Parties
and Securityholders.
Nothing in this Indenture or in the Securities,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other than the parties hereto and
their successors and assigns and the holders of the Securities (and, with respect to the provisions of Article 16, the holders
of Senior Indebtedness), any legal or equitable right, remedy or claim under this Indenture or under any covenant or provision
herein contained, all such covenants and provisions being for the sole benefit of the parties hereto and their successors and assigns
and the holders of the Securities (and, with respect to the provisions of Article 16, the holders of Senior Indebtedness).
SECTION 15.02. Provisions Binding on Company’s Successors.
All the covenants, stipulations, promises
and agreements in this Indenture contained by or in behalf of the Company shall bind its successors and assigns, whether so expressed
or not.
SECTION 15.03. Addresses for Notices, etc., to Company and
Trustee.
Any notice or demand which by any provisions
of this Indenture is required or permitted to be given or served by the Trustee or by the holders of Securities to or on the Company
may be given or served by postage prepaid first class mail addressed (until another address is filed by the Company with the Trustee),
as follows: TriState Capital Holdings, One Oxford Centre, 301 Grant Street, Suite 2700,
Pittsburgh, Pennsylvania, 15219, Attn: Chief Financial Officer. Any notice, direction, request or demand by any securityholder
to or upon the Trustee shall be deemed to have been sufficiently given or made, for all purposes, if given or made in writing at
the Corporate Trust Office of the Trustee as set forth in Section 4.02.
SECTION 15.04. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided
herein, where this Indenture provides for notice of holders of Securities of any event,
(a) 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 Registered Security affected by such event, at the address of such holder as it appears in the Security Register, not
earlier than the earliest date, and not later than the latest date, prescribed for the giving of such notice; and
(b) such notice
shall be sufficiently given to holders of Bearer Securities if published in an Authorized Newspaper in the Borough of Manhattan,
the City of New York and in such other city or cities as may be specified in such Securities on a Business Day at least twice,
the first such publication to be not earlier than the earliest date, and not later than the latest 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 or the sufficiency of any notice to holders of Bearer Securities given as provided herein.
Neither the failure to give notice by publication
to holders of Bearer Securities as provided above, nor any defect in any notice so published, shall affect the sufficiency of any
notice to holders of Registered Securities given as provided herein.
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 of Securities 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.
Any request, demand, authorization, direction,
notice, consent or waiver required or permitted under this Indenture shall be in the English language, except that any published
notice may be in an official language of the country of publication.
Notwithstanding anything in this Indenture
to the contrary, where any notice is to be given to the holders of Global Securities, notice shall be sufficient if given in accordance
with the procedures of the U.S. Depositary.
SECTION 15.05. Evidence of Compliance with Conditions Precedent.
Upon any application or demand by the Company
to the Trustee to take any action under any of the provisions 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 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 demand as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such particular application or demand, no additional certificate
or opinion need be furnished.
Each Officer’s Certificate and Opinion
of Counsel provided for in this Indenture and delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include (1) a statement that the person making such certificate or opinion has read such covenant
or condition; (2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based; (3) a statement that, in the opinion of such person, he or she has
made such examination or investigation as is necessary to enable him or her to express an informed opinion as to whether or not
such covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
SECTION 15.06. Legal Holidays.
In any case where the date of maturity
of interest on or principal of the Securities or the date fixed for redemption of any Securities shall be a Saturday or Sunday
or a legal holiday in New York, New York or Pittsburgh, Pennsylvania or in such
other place or places as the Company may designate pursuant to Section 4.02, or a day on which banking institutions in New York,
New York or Pittsburgh, Pennsylvania or in such other place or places are authorized
by law or required by executive order to close, then payment of interest or principal (and premium, if any) need not be made on
such date but may be made on the next succeeding Business Day with the same force and effect as if made on the date of maturity
or the date fixed for redemption, and no interest shall accrue for the period after such date.
SECTION 15.07. Trust Indenture Act to Control.
If and to the extent that any provision
of this Indenture limits, qualifies or conflicts with another provision included in this Indenture which is required to be included
in this Indenture by any of Sections 310 to 317, inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 15.08. Execution in Counterparts.
This Indenture may be executed in any number
of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument.
The exchange of copies of this Indenture and of signature pages by facsimile or PDF transmission will 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 will be deemed to be their original signatures for all purposes.
SECTION 15.09. Governing Law; Waiver of Jury Trial.
This Indenture and each Security shall
be deemed to be a contract made under the laws of the State of New York, and for all purposes shall be governed by and construed
in accordance with the laws of the State of New York.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATING TO THIS INDENTURE, THE SECURITIES OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 15.10. Severability.
In case any provision in this Indenture
or in the Securities shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions
shall not in any way be affected or impaired thereby.
The Trustee, by its execution of this Indenture,
hereby accepts the trusts in this Indenture declared and provided, upon the terms and conditions hereinabove set forth.
SECTION 15.11. Interpretations.
The Table of Contents, Cross-Reference
Table and Headings of the Articles and Sections of this Indenture have been inserted for convenience of reference only, are not
to be considered a part of this Indenture and shall in no way modify or restrict any of the terms or provisions hereof.
This Indenture may not be used to interpret
any other indenture, loan or debt agreement of the Company or its Subsidiaries or of any other Person. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
SECTION 15.12. U.S.A. Patriot Act.
The parties hereto acknowledge that in
accordance with Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (the “USA 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
USA PATRIOT Act.
SECTION 15.13. Force Majeure.
In no event shall the Trustee be responsible
or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or
military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications
or computer (software and hardware) services, it being understood that the Trustee shall use reasonable efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
SECTION 15.14. Jurisdiction.
The Company and the Trustee agree that
any suit, action or proceeding arising out of or based upon this Indenture or the Securities may be instituted in any state or
Federal court in the Borough of Manhattan, New York, New York, and any appellate court from any thereof, and irrevocably submit
to the non-exclusive jurisdiction of such courts in any suit, action or proceeding. The Company and the Trustee irrevocably waive,
to the fullest extent permitted by law, any objection to any suit, action, or proceeding that may be brought in connection with
this Indenture or the Securities, including such actions, suits or proceedings relating to securities laws of the United States
or any state thereof, in such courts whether on the grounds of venue, residence or domicile or on the ground that any such suit,
action or proceeding has been brought in an inconvenient forum. The Company and the Trustee agree that final judgment in any such
suit, action or proceeding brought in such court shall be conclusive and binding upon the Company or the Trustee, as applicable,
and may be enforced in any court to the jurisdiction of which the Company or the Trustee, as applicable, is subject by a suit upon
such judgment.
ARTICLE 16
SUBORDINATION OF SECURITIES
SECTION 16.01. Securities Subordinate to Senior Indebtedness.
Except as otherwise provided in a supplemental
indenture or pursuant to Section 2.03, the Company agrees, and each holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities is subordinated in right of payment, to the extent and in the manner provided in this Article, to the
prior payment in full of all Senior Indebtedness and that the subordination is for the benefit of the holders of Senior Indebtedness.
Notwithstanding the foregoing, if a deposit is made pursuant to Section 14.02 or Section 14.03 with respect to any Securities (and
provided all other conditions set out in Section 14.02 or 14.03, as applicable, shall have been satisfied with respect to such
Securities), then, when the 90th day after such deposit has ended, no money obligations so deposited, and no proceeds thereon,
will be subject to any rights of holders of Senior Indebtedness, including any such rights arising under this Article 16. Notwithstanding
anything in this Indenture to the contrary, the provisions of this Article 16 shall not apply to any amounts due to the Trustee
under Section 7.06.
IN WITNESS WHEREOF, TRISTATE CAPITAL HOLDINGS,
INC. has caused this Indenture to be signed and acknowledged by its Chief Executive Officer or its Chief Financial Officer, and
U.S. BANK, NATIONAL ASSOCIATION has caused this Indenture to be signed and acknowledged by one of its Responsible Officers, all
as of the day and year first above written.
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TRISTATE CAPITAL HOLDINGS, INC.
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By:
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/s/ James F. Getz
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Name: James F. Getz
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Title: President and Chief Executive Officer
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U.S. BANK NATIONAL ASSOCIATION
AS
TRUSTEE
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By:
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/s/ George J. Rayzis
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Name: George J. Rayzis
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Title: Vice President
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EXHIBIT A
[FORM OF CERTIFICATION]
[FORM OF CERTIFICATE
TO BE GIVEN BY PERSON ENTITLED TO RECEIVE (1) BEARER SECURITY, (2) SECURITY INITIALLY REPRESENTED BY A TEMPORARY GLOBAL
SECURITY OR (3) INTEREST ON A TEMPORARY GLOBAL SECURITY] CERTIFICATE
[Insert title or sufficient
description of Securities]
This is to certify that the above-captioned
Securities are being acquired by or on behalf of (or for offer to resell or for resale to), and if this certificate is being delivered
in connection with a payment of interest, were beneficially owned by or on behalf of: (a) a person (other than a financial institution
for purposes of resale during the restricted period) who is not a United States person; (b) a United States person (other than
a financial institution for purposes of resale during the restricted period) who is (i) a foreign branch of a United States financial
institution or (ii) a United States person acquiring such Securities through the foreign branch of a United States financial institution
and who for purposes of this certification holds such Securities through such financial institution on the date hereof, and, in
the case of either (i) or (ii), such United States financial institution has agreed, for the benefit of the Company, to comply
with the requirements of Section 165(j)(3)(A), (b) or (c) of the Internal Revenue Code of 1986, as from time to time amended, and
the regulations thereunder; or (c) a financial institution for purposes of resale during the restricted period and such financial
institution has not acquired such Securities for purposes of resale directly or indirectly to a United States person or to a person
within the United States or its Possessions. If the undersigned is a clearing organization, the undersigned has obtained a similar
certificate from its member organizations on which this certificate is based; provided, that if the undersigned has actual knowledge
that the information contained in such a certificate is false (and, absent documentary evidence that the beneficial owner of such
Security is not a United States person, it will be deemed to have actual knowledge that such certificate is false if it has a United
States address for such beneficial owner, other than a financial institution described above), the undersigned will not deliver
a Security in temporary or definitive bearer form to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
As used herein, “United States person”
means a citizen or resident of the United States, a corporation, partnership or other entity created or organized in or under the
laws of the United States and an estate or trust the income of which is subject to United States federal income taxation regardless
of its source, “United States” means the United States of America (including the States and the District of Columbia),
“Possessions” of the United States include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and Northern Mariana Islands, “restricted period” means the period described in Section 1.163-5(c)(2)(i)(D)(7) of the
Treasury Regulations and “financial institution” means the persons described in Section 1.165-12(c)(1)(v) of the Treasury
Regulations.
We undertake to advise you by [telex] if
the above statement as to beneficial ownership is not correct on the date of delivery of the above-captioned Securities or on the
interest payment date with respect to the above-captioned Securities, as the case may be, as to all of such Securities.
We understand that this certificate may
be required in connection with certain tax legislation in the United States. If administrative or legal proceedings are commenced
or threatened in connection with which this certificate is or would be relevant, we irrevocably authorize you to produce this certificate
or a copy thereof to any interested party in such proceedings.
Dated: __________________, 20___
[To be dated on or after
__________________, 20___ (the
date determined as provided in the
Indenture)]
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[Name of Person Entitled to Receive Bearer Security or
Interest]
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(Authorized Signatory)
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Name:
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Title:
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TRISTATE CAPITAL
HOLDINGS, INC.
Issuer
And
U.S. BANK NATIONAL
ASSOCIATION
Trustee
FIRST SUPPLEMENTAL
INDENTURE
Dated as of May 11,
2020
to
the Subordinated
Indenture
Dated as of May 11,
2020
5.75% Fixed-to-Floating
Rate
Subordinated Notes
due 2030
TABLE
OF CONTENTS
first
supplemental indenture
FIRST SUPPLEMENTAL
INDENTURE (this “Supplemental Indenture”), dated as of May 11, 2020, between TRISTATE CAPITAL BANCSHARES, INC.,
a Pennsylvania corporation (the “Company”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association
organized and existing under the laws of the United States of America, as trustee (“Trustee”).
RECITALS
OF THE COMPANY
WHEREAS, the Company
and the Trustee will have executed and delivered a Subordinated Debt Securities Indenture dated as of the date hereof (the “Base
Indenture” and, as the same may from time to time be amended, supplemented or otherwise modified in accordance therewith,
including by this Supplemental Indenture, 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 Company
desires to issue and sell on the date hereof Sixty Million Dollars ($60,000,000) aggregate principal amount of a new series of
Securities of the Company designated as its 5.75% Fixed-to-Floating Rate Subordinated Notes due 2030 (the “Notes”),
and such issuance and sale have been authorized by resolutions duly adopted by the Board of Directors of the Company and by the
Pricing Committee of the Board of Directors of the Company;
WHEREAS, the Company
desires to establish the terms of the Notes under this Supplemental Indenture;
WHEREAS, the Company
acknowledges that all things necessary to make this Supplemental Indenture a legal, binding and enforceable instrument, and to
make the Notes, when executed by the Company and authenticated and delivered by the Trustee, the legal, binding and enforceable
obligations of the Company in accordance with their terms and the terms of the Base Indenture, have been done;
WHEREAS, the Company
has requested that the Trustee execute and deliver this Supplemental Indenture.
NOW, THEREFORE,
for and in consideration of the premises and the purchase of the Notes by the Holders thereof, it is mutually agreed, for the equal
and proportionate benefit of all Holders of the Notes, as follows:
Article
I
SCOPE OF SUPPLEMENTAL INDENTURE
Section
1.01
Scope. This Supplemental Indenture constitutes an indenture supplemental 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 hereof and thereof are contained
in one instrument. All provisions included in this Supplemental Indenture supersede any conflicting provisions included in the
Base Indenture unless not permitted by law. Except as expressly amended by the Supplemental Indenture, the terms and provisions
of the Base Indenture shall remain in full force and effect. Notwithstanding the foregoing, this Supplemental Indenture
shall only apply to the Notes.
Article
II
DEFINITIONS
Section 2.01
Definitions and Other Provisions of General Application. For all purposes of this Supplemental Indenture, except
as otherwise expressly provided or unless the context otherwise requires:
(1)
all terms used in this Supplemental Indenture which are not otherwise defined herein shall have the meanings assigned to
them in the Base Indenture and include the plural as well as the singular; and;
(2)
Section 1.01 of the Base Indenture is amended and supplemented by inserting the following additional defined terms in their
appropriate alphabetical positions (and, in the case of any defined term which is duplicated in Section 1.01 of the Base Indenture,
by deleting the duplicate definition set forth in such Section 1.01 in its entirety):
“Additional
Notes” has the meaning specified in Section 3.02(b).
“Adjustments”
has the meanings set forth in Section 3.02(e)(iii)(3).
“Administrative
or Judicial Action” has the meaning specified in the definition of “Tax Event.”
“Alternative
Rate” has the meanings set forth in Section 3.02(e)(iii)(3).
“Business
Day” means with respect to any fixed rate Interest Payment Date, any weekday in New York, New York that is not a day
on which banking institutions in such city are authorized or required by applicable law, regulation, or executive order to be closed
and (b) with respect to any Floating Rate Interest Payment Date, any weekday in New York, New York that is not a day on which banking
institutions in such city are authorized or required by applicable law, regulation, or executive order to be closed, and additionally,
is a London Banking Day.
“Calculation
Agent” means the agent appointed by the Company prior to the commencement of the Floating Rate Period (which may be the
Company or any of its Affiliates) to act in accordance with Section 3.02(e).
“Designated
Senior Indebtedness” means any Senior Indebtedness that expressly provides that it is “designated senior indebtedness”
for purposes of the Indenture, provided that the instrument, agreement or other document creating or evidencing
such Senior Indebtedness may place limitations and conditions on the right of such Senior Indebtedness to exercise the rights of
Designated Senior Indebtedness.
“Determination
Date” with respect to an Interest Period will be the second London Banking Day preceding the first day of such Interest
Period.
“Federal
Reserve” means the Board of Governors of the Federal Reserve System or any successor federal banking agency.
“Fixed
Rate Interest Payment Date” has the meaning specified in Section 3.02(e)(i), and shall constitute an “Interest
Payment Date.”
“Fixed
Rate Period” 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), and shall constitute an “Interest
Payment Date.”
“Floating
Rate Period” has the meaning specified in Section 3.02(e)(ii).
“IFA”
has the meanings set forth in Section 3.02(e)(iii)(3).
“Interest
Payment Date” has the meaning specified in Section 3.02(e)(ii).
“Interest
Period” means the period from and including the immediately preceding Interest Payment Date in respect of which interest
has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including the Issue Date to,
but excluding, the applicable Interest Payment Date for such period (or the Maturity Date or earlier Redemption Date, if applicable).
“Issue
Date” means May 11, 2020.
“LIBOR
Event” has the meanings set forth in Section 3.02(e)(iii)(3).
“London
Banking Day” means any day on which dealings in U.S. dollars are transacted or, with respect to any future date, are
expected to be transacted in the commercial banks are open and dealing in deposits in U.S. dollars in the London interbank market.
“Material
Bank Subsidiary” means TriState Capital Bank, a Pennsylvania-chartered bank, or any successor thereof or any of the Company’s
Subsidiaries that is a depository institution and that has consolidated assets equal to 80% or more of the Company’s consolidated
assets.
“Maturity
Date,” with respect to the principal of the Notes, has the meaning specified in Section 3.02(d), which date shall constitute
the “Stated Maturity” thereof.
“Redemption
Event” means, collectively, the occurrence of (i) a Tier 2 Capital Event, (ii) a Tax Event, or (iii) the Company becoming
required to register as an investment company pursuant to the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1 et seq.).
“Relevant
Governmental Body” means the Federal Reserve and/or the Federal Reserve Bank of New York, or a committee officially endorsed
or convened by the Federal Reserve and/or the Federal Reserve Bank of New York or any successor thereto.
“Representative”
means the (a) indenture trustee or other trustee, agent or representative for any Senior Indebtedness or (b) with respect to any
Senior Indebtedness that does not have any such trustee, agent or other representative, (i) in the case of such Senior Indebtedness
issued pursuant to an agreement providing for voting arrangements as among the holders or owners of such Senior Indebtedness, any
holder or owner of such Senior Indebtedness acting with the consent of the required Persons necessary to bind such holders or owners
of such Senior Indebtedness and (ii) in the case of all other such Senior Indebtedness, the holder or owner of such Senior Indebtedness.
“Senior
Indebtedness” means, without duplication, the principal, premium, if any, unpaid interest (including interest accruing
on or after the filing of any petition in bankruptcy or for reorganization relating to the Company, whether or not a claim for
post-filing interest is allowed in such proceeding), fees, charges, expenses, reimbursement and indemnification obligations, and
all other amounts payable under or in respect of the following indebtedness of the Company, whether any such indebtedness exists
as of the date of the Indenture or is created, incurred or assumed after such date: (i) all obligations for borrowed money; (ii)
all obligations evidenced by debentures, notes, debt securities or other similar instruments; (iii) all obligations in respect
of letters of credit, security purchase facilities or bankers acceptances or similar instruments (or reimbursement obligations
with respect thereto); (iv) a deferred obligation of the Company, or any such obligation directly or indirectly guaranteed by the
Company, incurred in connection with the acquisition of any business, properties or assets or delivery of services not evidenced
by a note or similar instrument given in connection therewith, except trade accounts payable arising in the ordinary course of
business; (v) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on property
owned by the Company; (vi) the Company’s obligation to make payment pursuant to the terms of certain financial instruments
such as (A) securities contracts, interest rate, currency future or exchange contracts and foreign exchange contracts, (B) derivative
instruments, such as 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
and commodity options contracts and (C) financial instruments similar to those set forth in (A) or (B) above; (vii) an obligation
of the Company, or any such obligation directly or indirectly guaranteed by the Company, for purchased money or funds or similar
obligations; (viii) the Company’s obligation under direct credit substitutes; (ix) obligations to general creditors of the
Company; (x) a deferred obligation of, or any such obligation, directly or indirectly guaranteed by, the Company which obligation
is incurred in connection with the acquisition of any business, properties or assets not evidenced by a note or similar instrument
given in connection therewith; (xi) all obligations of the type referred to in the foregoing subclauses above of other Persons
for the payment of which the Company is responsible or liable as obligor, guarantor or otherwise, whether or not classified as
a liability on a balance sheet prepared in accordance with GAAP; and (xii) any renewals, amendments, deferrals, supplements, extensions,
refundings or replacements of any of the foregoing. Senior Indebtedness excludes: (w) any such indebtedness, obligation or liability
referred to above as to which, in the instrument creating or evidencing the same or pursuant to which the same is outstanding,
it is provided that such indebtedness, obligation or liability is not superior in right of payment to the Notes, or ranks pari
passu with the Notes; (x) any such indebtedness, obligation or liability which is subordinated to indebtedness of the Company
to substantially the same extent as, or to a greater extent than, the Notes are subordinated; (y) any indebtedness to a Subsidiary;
and (z) the Notes. Notwithstanding the foregoing, and for the avoidance of doubt, if the Federal Reserve (or other applicable regulatory
agency or authority) promulgates any rule or issues any interpretation that defines general creditor(s), the main purpose of which
is to establish criteria for determining whether the subordinated debt of a financial or bank holding company is to be included
in its capital, then the term “general creditors” as used in this definition of “Senior Indebtedness” will
have the meaning as described in that rule or interpretation.
“Tax Event”
means the receipt by the Company of an opinion of independent tax counsel to the effect that as a result of (1) an amendment to
or change (including any announced prospective amendment or change) in any law or treaty, or any regulation thereunder, of the
United States or any of its political subdivisions or taxing authorities; (2) a 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”); (3) an 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 (4) a threatened challenge asserted in writing in connection with an audit of our federal income
tax returns or positions or a similar audit of any of our 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 Notes,
in each case, which change or amendment or challenge becomes effective or which pronouncement, decision or challenge is announced
on or after the Issue Date, there is more than an insubstantial risk that interest payable by the Company on the Notes is not,
or, within 90 days of the date of such opinion, will not be, deductible by the Company, in whole or in part, for United States
federal income tax purposes.
“Three-month
LIBOR” has the meaning set forth in Section 3.02(e)(iii).
“Tier 2
Capital Event” means the Company’s good faith determination that, as a result of (1) any amendment to, clarification
of, or change in (including any announced prospective change), the laws, rules or regulations of the United States (including,
for the avoidance of doubt, any agency or instrumentality of the United States, including the Federal Reserve and other federal
bank regulatory agencies) or any political subdivision of or in the United States that is enacted or becomes effective after the
Issue Date, (2) any proposed change in those laws, rules or regulations that is announced or becomes effective after the Issue
Date, or (3) any official administrative decision or judicial decision or administrative action or other official pronouncement
interpreting or applying those laws, rules, regulations, policies or guidelines with respect thereto that is announced after the
Issue Date, there is more than an insubstantial risk that the Company will not be entitled to treat the Notes then outstanding
as “Tier 2 Capital” (or its equivalent), for purposes of the capital adequacy rules or regulations of the Federal Reserve
(or, as and if applicable, the capital adequacy guidelines or regulations of any successor appropriate federal banking agency),
as then in effect and applicable, as then in effect and applicable to the Company, for so long as any Notes are outstanding.
Article
III
FORM AND TERMS OF THE NOTES
Section 3.01
Form and Dating. The Notes shall be substantially in the form of Exhibit A attached hereto. The Notes shall
be executed on behalf of the Company by its Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial
Officer or its General Counsel.
(a)
The terms contained in the Notes shall constitute, and are hereby expressly made, a part of the Base Indenture as supplemented
by this Supplemental Indenture, and the Company and the Trustee, by their execution and delivery of this Supplemental Indenture,
expressly agree to such terms and provisions and to be bound thereby.
Section 3.02
Terms. The following terms relating to the Notes are hereby established:
(a)
Title. The Notes shall constitute a series of Securities having the title “5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030” and the CUSIP number is 89678F AA8.
(b)
Principal Amount. The aggregate principal amount of the Notes that may be authenticated and delivered under the Indenture
on the Issue Date shall be SIXTY MILLION DOLLARS ($60,000,000). If no Event of Default has occurred and is continuing with respect
to the Notes, the Company may, from time to time, without notice to or the consent of the Holders, create and issue additional
notes pursuant to the Indenture ranking equally with the Notes and with identical terms in all respects (or in all respects except
for the offering price, the payment of interest accruing prior to the issue date of such notes and the first payment of interest
following the issue date of such Additional Notes) (“Additional Notes”); provided, however, that a
separate CUSIP number will be issued for any such Additional Notes unless such Additional Notes are fungible with the Notes for
U.S. federal income tax purposes, subject to the procedures of DTC. The Notes and any Additional Notes shall constitute a single
series under the Indenture. All references to the Notes shall include any Additional Notes, unless the context otherwise requires.
(c)
Person to Whom Interest Is Payable. Defaulted Interest may be paid to the person in whose name such Registered Security
shall be registered upon the Security Register as provided in Section 8.03 of the Base Indenture. However, interest that
is paid on the Maturity Date will be paid to the Person to whom the principal is payable.
(d)
Maturity Date. The entire outstanding Principal of the Notes shall be payable on May 15, 2030 (the “Maturity
Date”).
(e)
Interest.
(i)
The Notes will bear interest at a fixed rate of 5.75% per annum from and including May 11, 2020, to but excluding May 15,
2025, or earlier Redemption Date (the “Fixed Rate Period”). Interest accrued on the Notes during the Fixed Rate
Period will be payable semi-annually in arrears on May 15 and November 15 of each year, commencing on November 15, 2020 (each such
date, a “Fixed Rate Interest Payment Date”). The last Fixed Rate Interest Payment Date shall be May 15, 2025,
unless the Notes are earlier redeemed. The interest payable during the Fixed Rate Period will be paid to each Holder in whose name
a Note is registered at the close of business on the fifteenth day (whether or not a Business Day) immediately preceding the applicable
Fixed Rate Interest Payment Date.
(ii)
The Notes will bear a floating interest rate from and including May 15, 2025, to but excluding the Maturity Date or earlier
Redemption Date (the “Floating Rate Period”). The floating interest rate will be reset for each Interest Period
in the Floating Rate Period, and the interest rate for each such Interest Period shall be equal to the then-current Three-Month
LIBOR for such Interest Period plus 536 basis points. During the Floating Rate Period, interest on the Notes will be payable quarterly
in arrears on February 15, May 15, August 15 and November 15 of each year, commencing on August 15, 2025 (each such date, a “Floating
Rate Interest Payment Date” and, together with each Fixed Rate Interest Payment Date, each an “Interest Payment
Date”). The last Floating Rate Interest Payment Date shall be May 15, 2030, unless the Notes are earlier redeemed.
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) immediately preceding the applicable Floating Rate Interest Payment
Date. The Calculation Agent will provide the Company and the Trustee with the interest rate in effect for each Interest Period
during the Floating Rate Period promptly once available but in no event later than fifteen (15) days prior to any Floating Rate
Interest Payment Date.
(iii)
For purposes of determining the interest rate during the Floating Rate Period, “Three-month LIBOR” with
respect to the Floating Rate Period, the rate determined by the Calculation Agent as follows:
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(1)
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the London interbank offered rate for deposits in U.S. dollars for a three-month period, as that
rate appears on Reuters screen page “LIBOR01” (or any successor or replacement page) at approximately 11:00 a.m., London
time, on the relevant Determination Date.
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(2)
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If no offered rate appears on Reuters screen page “LIBOR01” (or any successor or
replacement page) on the relevant Determination Date at approximately 11:00 a.m., London time, then the Calculation Agent, in consultation
with the Company, shall select four major banks in the London interbank market and shall request each of their principal London
offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000.00 are
offered by it to prime banks in the London interbank market, on that date and at that time. If at least two quotations are provided,
Three-month LIBOR shall be the arithmetic average (rounded upward if necessary to the nearest .00001 of 1%) of the quotations provided.
Otherwise, the Calculation Agent, in consultation with the Company, shall select three major banks in New York City and shall request
each of them to provide a quotation of the rate offered by it at approximately 11:00 a.m., New York City time, on the Determination
Date for loans in U.S. dollars to leading European banks for a three-month period for the applicable Floating Rate Period in an
amount of at least $1,000,000.00. If three quotations are provided, Three-month LIBOR shall be the arithmetic average (rounded
upward if necessary to the nearest .00001 of 1%) of the quotations provided. Otherwise, if a LIBOR Event (as defined below) has
not occurred, Three-month LIBOR for the next Floating Rate Period shall be equal to Three-month LIBOR in effect for the then-current
Floating Rate Period or, in the case of the first Interest Period in the Floating Rate Period, the most recent rate on which Three-month
LIBOR could have been determined in accordance with the first sentence of this subsection had the dividend rate been a floating
rate during the Fixed Interest Rate Period.
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(3)
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Notwithstanding subsections (1) and (2) immediately above, if the Company, in its sole discretion,
determines on the relevant Determination Date that the Three-Month LIBOR has been discontinued or is no longer viewed as an acceptable
benchmark for securities similar to the Notes, and the Company has notified the Calculation Agent (if it is not the Company) of
such determination (a “LIBOR Event”), then the Calculation Agent shall use, as directed by the Company, as a
substitute or successor base rate (the “Alternative Rate”) for each future Determination Date, the alternative
reference rate selected by the central bank, reserve bank, monetary authority or any similar institution (including any committee
or working group thereof) that is consistent with market practice regarding a substitute for the Three-Month LIBOR. As part of
such substitution, the Calculation Agent shall, as directed by the Company, make such adjustment to the Alternative Rate or the
spread thereon, as well as the business day convention, the Determination Date and related provisions and definitions (“Adjustments”),
in each case that are consistent with market practice for the use of such Alternative Rate. Notwithstanding the foregoing, if the
Company determines that there is no alternative reference rate selected by the central bank, reserve bank, monetary authority or
any similar institution (including any committee or working group thereof) that is consistent with market practice regarding a
substitute for Three-month LIBOR, the Company may, in its sole discretion, appoint an independent financial advisor (“IFA”)
to determine an appropriate Alternative Rate and any Adjustments, and the decision of the IFA shall be binding upon the Company,
the Calculation Agent and the Holders of the Notes. If on any Determination Date during the Floating Rate Period (which may be
the first Determination Date of the Floating Rate Period) a LIBOR Event has occurred prior to such Determination Date and for any
reason an Alternative Rate has not been determined or there is no such market practice for the use of such Alternative Rate (and,
in each case, an IFA has not determined an appropriate Alternative Rate and Adjustments or an IFA has not been appointed) as of
such Determination Date, then, commencing on such Determination Date, the interest rate, business day convention and manner of
calculating dividends applicable during the Fixed Rate Period shall be in effect for the applicable Interest Period and shall remain
in effect during the remainder of the Floating Interest Period.
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(iv)
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, 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 actual number of days elapsed.
The interest payable during on any scheduled Interest Payment Date or the Maturity Date 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) immediately preceding the applicable
Interest Payment Date. Dollar amounts resulting from interest calculations will be rounded to the nearest cent, with one-half cent
being rounded upward.
(v)
The Company shall take such commercially reasonable actions as are necessary to ensure that from the commencement of the
Floating Rate Period for so long as any of the Notes remain outstanding there will at all times be a Calculation Agent appointed
to calculate Three-Month LIBOR in respect of each Floating Rate Period. 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 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 shall not be the Trustee without
the Trustee’s express written consent. 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, then the resigning Calculation
Agent may petition, at the expense of the Company, any court of competent jurisdiction for the appointment of a successor Calculation
Agent with respect to such series. For the avoidance of doubt, if at any time there is no Calculation Agent appointed by the Company,
then the Company shall be the Calculation Agent and the foregoing provisions shall apply to the Company in its role as the Calculation
Agent. The Company may appoint itself or any of its Affiliates to be the Calculation Agent.
(vi)
The Company shall give written notice of the appointment of any Calculation Agent to the Trustee. The Company (or its Calculation
Agent) shall notify the Trustee in writing upon a LIBOR Event, of an Alternative Rate, any Adjustments and of other items affecting
the interest rate on the Notes after a LIBOR Event.
(vii)
The Trustee (including in its capacity as Paying Agent), unless acting as the Calculation Agent, shall have no (1) responsibility
or liability for (A) Three-Month LIBOR, (B) selection of an Alternative Rate (including whether the conditions for the designation
of such rate have been satisfied), (C) determination or calculation of an Alternative Rate, (D) determination of whether a LIBOR
Event has occurred or (E) any action or inaction of the Calculation Agent or any related party, and in each such case under clauses
(A) through (E) above shall be entitled to conclusively rely upon the selection, determination, and/or calculation thereof as provided
by the Company or its Calculation Agent, as applicable, or (2) liability for any failure or delay in performing its duties hereunder
as a result of the unavailability of Three-Month LIBOR as described in the definition thereof, including as a result of the Company’s,
IFA’s or Calculation Agent’s failure to select an Alternative Rate or the Calculation Agent’s failure to calculate
an Alternative Rate. The Trustee shall be entitled to rely conclusively on all notices from the Company or its Calculation Agent
regarding Three-Month LIBOR or an Alternative Rate, including in regards to a LIBOR Event.
(f)
Place of Payment of Principal and Interest. So long as the Notes are issued in the form of one or more Global Securities,
the Company shall make, or cause the Paying Agent to make, all payments of principal and interest on the Notes by wire transfer
in immediately available funds to DTC or its nominee, in accordance with applicable procedures of DTC. If the Notes are not so
issued, the Company may, at its option, make, or cause the Paying Agent to make, payments of principal and interest on the Notes
by check mailed to the address of the Holder specified in accordance with Sections 3.02(e)(i) or (e)(ii).
(g)
Redemption. The Notes are not subject to redemption or prepayment at the option of the Holders.
The Notes shall
be redeemable at the option of the Company, in whole or in part from time to time, beginning with the Interest Payment Date on
May 15, 2025, and on any Interest Payment Date thereafter, subject to obtaining the prior approval of the Federal Reserve to the
extent such approval is then required under the rules of the Federal Reserve.
In addition, the
Company may, at its option, redeem the Notes at any time before the Maturity Date, in whole but not in part, subject to obtaining
the prior approval of the Federal Reserve to the extent such approval is then required under the rules of the Federal Reserve,
upon the occurrence of a Redemption Event.
The Notes may not
otherwise be redeemed prior to the Maturity Date.
The Redemption Price
shall equal 100% of the principal amount of the Notes to be redeemed plus accrued and unpaid interest to, but
excluding, the Redemption Date fixed by the Company. The provisions of Article 3 of the Base Indenture shall apply to any redemption
of the Notes. Any partial redemption will be made in accordance with DTC’s applicable procedures among all Holders. If any
Note is to be redeemed in part only, the notice of redemption relating to such Note shall state, in addition to the information
specified in Article 3 of the Base Indenture, that such redemption is a partial redemption, the portion of the principal amount
thereof to be redeemed, and that a replacement Note in principal amount equal to the unredeemed portion thereof will be issued
in the name of the Holder thereof upon cancellation of the original Note.
Any notice of redemption
may be conditional in the Company’s discretion on one or more conditions precedent, and the Redemption Date may be delayed
until such time as any or all of such conditions have been satisfied or revoked by the Company if it determines that such conditions
will not be satisfied. The Trustee shall have no liability or responsibility to monitor such conditions or to determine their satisfaction
and the Company shall advise the trustee in writing upon satisfaction of such conditions (or failure of such conditions).
(h)
Sinking Fund. There shall be no sinking fund for the Notes.
(i)
Conversion and Exchange. The Notes are not convertible into, or exchangeable for, equity securities, other securities
or assets of the Company or its Subsidiaries.
(j)
Denomination. The Notes and any beneficial interest in the Notes shall be in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof.
(k)
Currency of the Notes. The Notes shall be denominated, and the principal thereof and interest thereon shall be payable,
in Dollars.
(l)
Registered Form. The Notes shall be issuable as Global Securities, and DTC (or any successor thereto or successor
depositary appointed by the Company) shall be the depositary for the Notes. Sections 2.04 and 2.07 of the Base Indenture shall
apply to the Notes.
(m)
Events of Default. Section 6.01 of the Base Indenture be deleted in its entirety and the following shall be inserted
in lieu thereof solely with respect to the Notes:
“SECTION
6.01. Events of Default; Acceleration of Maturity.
In case one or more
of the following Events of Default with respect to a particular series shall have occurred and be continuing:
(a) the entry by
a court having jurisdiction in the premises of (1) a decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization or other similar law or (2) a decree
or order adjudging the Company bankrupt or insolvent, or approving as properly filed a petition seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or of any substantial part of its
property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree or order for relief
or any such other decree or order unstayed and in effect for a period of 60 consecutive days;
(b) the commencement
by the Company 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 bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary case or proceeding under any applicable 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 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 of any substantial
part of its property or the taking of corporate action by the Company in furtherance of any such action; or
(c) (1) the appointment
by a competent government agency having primary regulatory authority over any Material Bank Subsidiary under any applicable federal
or state banking, insolvency or similar law now or hereafter in effect of a receiver of any such Material Bank Subsidiary or (2)
the entry of a decree or order in any case or proceeding under any applicable federal or state banking, insolvency or other similar
law now or hereafter in effect appointing any receiver of any Material Bank Subsidiary.
(d) the Company
fails to make any payment of any interest upon any Security of that series when it becomes due and payable, and continuance of
such default for a period of 30 days (whether or not such payment is prohibited by the provisions of Article 16 of the Base Indenture).
(e) the Company
fails to make principal of (or premium, if any, on) any Security of that series at its Maturity, upon redemption, by acceleration
or otherwise (whether or not such payment is prohibited by the provisions of Article 16 of the Base Indenture).
(f) the Company defaults
in the performance, or breaches, of any term, covenant or warranty of the Company in this Indenture (other than a term, covenant
or warranty a default in whose performance or whose breach is elsewhere in this Section specifically dealt with or which has expressly
been included in this Indenture solely for the benefit of series of Securities other than that series), and continuance of such
default or breach for a period of 90 days after there has been given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by 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.
If an Event of Default
specified in this Section 6.01(a), (b) or (c) with respect to Securities of any series at the time Outstanding occurs, the principal
amount of all the Securities of that series (or, if any Securities of that series are Original Issue Discount Securities, such
portion of the principal amount of such Securities as may be specified by the terms thereof) shall automatically, and without any
declaration or other action on the part of the Trustee or any Holder, become immediately due and payable.
At any time after
such a declaration of acceleration with respect to Securities of any series has been made and before a judgment or decree for payment
of the money due has been obtained by the Trustee as hereinafter in this Article provided, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(a) the Company
has paid or deposited with the Trustee a sum sufficient to pay:
(1) all overdue
interest on all Securities of that series,
(2) the principal
of (and premium, if any, on) any Securities of that series which have become due otherwise than by such declaration of acceleration
and any interest thereon at the rate or rates prescribed therefor in such Securities,
(3) to the extent
that payment of such interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such Securities,
and
(4) all sums
paid or advanced by the Trustee hereunder and the reasonable compensation, fees, costs, expenses, disbursements and advances of
the Trustee, its agents and counsel;
and
(b) all Events of
Default with respect to Securities of that series, other than the non-payment of the principal of Securities of that series which
have become due solely by such declaration of acceleration, have been cured or waived as provided in Section 6.13 of the Base Indenture.
No such rescission
shall affect any subsequent default or impair any right consequent thereon.”
(n)
Waiver. Section 6.13(2) of the Base Indenture be deleted in its entirety and the following shall be inserted in lieu
thereof: “described in clauses (a), (b) or (c) of Section 6.01.”
(o)
Supplemental Indentures. Section 10.01 of the Base Indenture shall apply to the Securities; however, Section 10.01(g)
shall be deleted in its entirety and replaced with “Reserved” and the following provisions will be added as new sections
following Section 10.01(h): “(i) to establish the form or terms of the Notes; (j) to provide for uncertificated Notes or
otherwise alter the Indenture to facilitate the issuance, legending, or transfer of the Notes in a manner that does not materially
adversely affect any holder of the Notes, as applicable, and does not result in any violation of applicable securities law; (k)
to supplement any provisions of the Indenture necessary to permit or facilitate the defeasance, covenant defeasance or discharge
of the Notes, provided that such action does not adversely affect the interests of the holders of the Notes or any other
debt securities issued under the Indenture; (l) to comply with the rules or regulations of any securities exchange or automated
quotation system on which any of the Notes may be listed or traded; or (m) to implement any Alternative Rate or any transition
provisions after a LIBOR Event has occurred (or in anticipation thereof).”
(p)
No Collateral. The Notes shall not be entitled to the benefit of any security interest in, or collateralization by,
any rights, property or interest of the Company.
(q)
No Additional Amounts. In the event that any payment on the Notes is subject to withholding of any U.S. federal income
tax or other tax or assessment (whether as a result of a change in law or otherwise), the Company will not pay additional amounts
with respect to such tax or assessment.
(r)
Notices to Holders. Any notices required to be given to Holders shall be given to the Trustee. Notwithstanding any
other provision of the Indenture or any Note, where the Indenture or any Note provides for notice of any event or any other communication
(including any notice of redemption) to a Holder (whether by mail or otherwise), such notice shall be sufficiently given if given
to DTC (or its designee) pursuant to the applicable procedures from DTC or its designee, including by electronic mail in accordance
with accepted practices at DTC.
(s)
Additional Terms. Other terms applicable to the Notes are as otherwise provided for in the Base Indenture, as supplemented
by this Supplemental Indenture, including Article IV hereof.
Article
IV
SUBORDINATION OF SECURITIES
Section 4.01
Agreement of Subordination. The Company covenants and agrees, and each Holder by purchasing, holding or accepting
a Note likewise covenants and agrees, that all Notes shall be issued subject to the provisions of this Article IV; and each Person
holding any Note, whether upon original issue or upon transfer, assignment or exchange thereof, accepts and agrees to be bound
by such provisions.
The payment of the
principal of, interest on, any Redemption Price for and any Additional Amounts with respect to the Notes shall, to the extent and
in the manner hereinafter set forth, be subordinated and subject in right of payment to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of the Indenture or thereafter incurred, assumed or guaranteed, and that these subordination
provisions are for the benefit of the holders of Senior Indebtedness.
No provision of
this Article shall prevent the occurrence of any Default or Event of Default hereunder.
Section 4.02
Subordination Provisions.
(a) Except
as otherwise specified, the Company agrees, and each Holder of the Notes by accepting the Notes agrees, that the indebtedness evidenced
by the Notes is subordinated in right of payment, to the extent and in the manner provided in this Section 4.02, to the prior payment
in full of all Senior Indebtedness and that the subordination is for the benefit of the holders of Senior Indebtedness.
(b) In
the event of (a) any insolvency or bankruptcy case or proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its creditors, as such, or to its assets, or (b) any
liquidation, dissolution or other winding up of the Company, whether voluntary or involuntary and whether or not involving insolvency
or bankruptcy, or (c) any assignment for the benefit of creditors or any other marshalling of assets and liabilities of the Company
((a) through (c), an “Insolvency Event”):
(i)
holders of Senior Indebtedness shall be entitled to receive payment in full in cash of the principal thereof, and premium,
if any, additional amounts owing in respect thereof, if any, and interest thereon (including interest accruing after the commencement
of any such proceeding) to the date of payment on the Senior Indebtedness before Holders shall be entitled to receive any payment
of principal of or interest on Notes;
(ii)
until the Senior Indebtedness is paid in full in cash, any indebtedness to which Holders of the Notes or the Trustee would
be entitled (except for the fees and expenses due and owing to Trustee) but for this Section 4.02 shall be made to holders of Senior
Indebtedness as their interests may appear for the application to the payment thereof, except that Holders of the Notes may receive
securities that are subordinated to Senior Indebtedness to at least the same extent as the Notes; and
(iii)
the Trustee is entitled to conclusively rely upon an order or decree of a court of competent jurisdiction or a certificate
of a bankruptcy trustee or other similar official for the purpose of ascertaining the persons entitled to participate in such distribution,
the holders of Senior Indebtedness and other Company debt, the amount thereof or payable thereon and all other pertinent facts
relating to the Trustee’s obligations under this Section 4.02.
(c) In
the event that, notwithstanding the foregoing provisions of this Section 4.02, the Trustee or the Holder of any of the Notes shall
have received any payment or distribution of assets of the Company of any kind or character, whether in cash, property or securities,
including by way of set-off or any such payment or distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the Notes, before all Senior Indebtedness is paid in
full or payment thereof provided for, and if such fact shall, at or prior to the time of such payment or distribution, have been
made known to the Trustee or, as the case may be, such Holder of the Notes, in writing by the Company then and in such event such
payment or distribution shall be paid over or delivered forthwith to the Trustee in bankruptcy, receiver, liquidating trustee,
custodian, assignee, agent or other Person making payment or distribution of assets of the Company for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior Indebtedness in full, after giving effect
to any concurrent payment or distribution to or for the holders of Senior Indebtedness. Any taxes that have been withheld or deducted
from any payment or distribution in respect of the Notes, or any taxes that ought to have been withheld or deducted from any such
payment or distribution that have been remitted to the relevant taxing authority, shall not be considered to be an amount that
the Trustee or the Holder of any of the Notes receives for purposes of this Section.
(d) (i)
The Company may not pay principal of, or premium, if any or interest on the Notes and may not acquire any Notes for cash or property,
other than capital stock, of the Company if:
(A) a
default (x) in the payment of principal, premium, if any, or interest, on any Senior Indebtedness beyond any applicable grace period
with respect thereto occurs and is continuing or (y) arising from an Insolvency Event of the Company occurs and, in the case of
both (x) and (y), holders of the Senior Indebtedness have accelerated the maturity of such Senior Indebtedness due to such event
of default;
(B) a
default on Senior Indebtedness other than those referenced in clause (A) above occurs and is continuing and the holders of such
Senior Indebtedness (or a representative on their behalf) accelerate the maturity of such Senior Indebtedness; provided, that a
holder, or a representative of the holders, of such Senior Indebtedness shall have provided written notice to the Company that
the holders of the Senior Indebtedness have accelerated the maturity of such Senior Indebtedness due to such event of default;
or
(C) a
default under any Senior Indebtedness is the subject of judicial proceedings or the Trustee receives a notice of the default from
the Company.
(ii) The
Company may resume payments on the Notes and may acquire them when all defaults referenced in clause (d)(i) above are cured or
waived or any acceleration shall have been rescinded or annulled.
(e) In
the event that any Notes are declared due and payable before their stated Maturity Date, then and in such event the holders of
Senior Indebtedness shall be entitled to receive payment in full of all amounts due or to become due on or in respect of all Senior
Indebtedness or provision shall be made for such payment in cash, before the Holders of the Notes are entitled to receive any payment
(including any payment which may be payable by reason of the payment of any other indebtedness of the Company being subordinated
to the payment of the Notes) by the Company on account of the principal of, or premium, if any or interest on the Notes or on account
of the purchase or other acquisition of Notes; provided, that any money deposited pursuant to Article 12 and Article 14 of the
Base Indenture not in violation of the Indenture shall not be subject to the claims of holders of Senior Indebtedness, unless,
in avoidance of doubt, it was deposited in connection with any declaration of acceleration under Article 6 of the Base Indenture.
In the event that,
notwithstanding the foregoing, the Company shall make any payment to the Trustee or the Holder of any Note prohibited by the foregoing
provisions of this Section, and if such fact shall, at or prior to the time of such payment, have been made known to the Trustee
in writing or, as the case may be, such Holder, then and in such event such payment shall be paid over and delivered forthwith
to the Trustee with respect to such Senior Indebtedness.
(f) If
payment or distribution on account of the Notes of any character or security, whether in cash, securities or other property, is
received by Holder, including any applicable Trustee, in contravention of any of the terms of this Section 4.02 and before all
Senior Indebtedness has been paid in full, such payment or distribution or security will be received in trust for the benefit of
holders of Senior Indebtedness or their representatives for application to the payment of all Senior Indebtedness remaining unpaid
to the extent necessary to pay all Senior Indebtedness in full.
(g) The
Company shall promptly notify the Trustee, in writing, of any facts known to the Company that would cause a payment on the Notes
to violate this Section 4.02. The Company shall provide all relevant contact, wiring and other information as the Trustee may require
in order to pay over or deliver to the representative representing the Senior Indebtedness any funds or other payment or distribution
in accordance with this Section 4.02. The Trustee shall be entitled to conclusively rely on any such information provided by the
Company.
(h) After
all Senior Indebtedness is paid in full and until the Notes are paid in full, Holders shall be subrogated to the rights of holders
of Senior Indebtedness to receive payments or distributions applicable to Senior Indebtedness to the extent that distributions
otherwise payable to such Holders have been applied to the payment of Senior Indebtedness. A payment or distribution made under
this Section 4.02 to holders of Senior Indebtedness which otherwise would have been made to Holders is not, as among the Company,
its creditors other than the holders of Senior Indebtedness and Holders, a payment or distribution by the Company on account of
the Senior Indebtedness.
(i) This
Section 4.02 is intended solely to define the relative rights of Holders on the one hand and the holders of Senior Indebtedness
on the other hand. Nothing in the Indenture or in the Notes shall:
(i)
impair, as among the Company, its creditors other than holders of Senior Indebtedness and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to the Holders of the Notes the principal of, premium, if
any and interest on the Notes as and when the same shall become due and payable in accordance with their terms;
(i)
affect the relative rights of Holders and creditors of the Company other than holders of Senior Indebtedness;
(ii)
prevent the Trustee or any Holder from exercising its available remedies upon an Event of Default, subject to the rights
of holders of Senior Indebtedness to receive payments or distributions otherwise payable to Holders or the Trustee; or
(iii)
If the Company fails because of this Section 4.02 to pay principal of, or premium, if any or interest on any of the Notes
on the due date, such failure shall constitute an Event of Default under the Indenture.
(j) No
right of any holder of Senior Indebtedness to enforce the subordination of the indebtedness evidenced by the Notes shall be impaired
by any act or failure to act by the Company or by its failure to comply with the Indenture.
(k) The
Trustee may continue to make payments on the Notes until it receives written notice of facts that would cause a payment of principal
of or interest on the Notes to violate this Section 4.02. Only the Company may give the written notice. The Trustee has no fiduciary
duty to the holders of Senior Indebtedness, or any other party. Notwithstanding anything herein to the contrary, the Company’s
obligation to pay, and the Company’s payment of, the amounts required by Section 7.06 of the Base Indenture are excluded
from the operation of this Section 4.02. For the sake of clarity, such payments are not subordinated to the Company’s Senior
Indebtedness.
(l) Nothing
contained in this Section 4.02 or elsewhere in the Indenture or in any of the Notes shall prevent (a) the Company, at any time
except during the pendency of any case, proceeding, dissolution, liquidation or other winding up, assignment for the benefit of
creditors or other marshalling of assets and liabilities of the Company referred to in Section 4.02(b) hereof or under the conditions
described in Section 4.02(c) or 4.02(d) hereof, from making payments at any time of or on account of the principal of, or premium,
if any or interest on the Notes or on account of the purchase or other acquisition of the Notes, or (b) the application by the
Trustee of any money deposited with it under the Indenture to the payment of or on account of the principal of, or premium, if
any or interest on the Notes or the retention of such payment by the Holders of the Notes, if, at the time of such application
by the Trustee, it did not have knowledge (in accordance with Section 4.02(f) hereof) that such payment would have been prohibited
by the provisions of this Section 4.02.
(m) Each
Holder of a Note by his acceptance thereof authorizes and directs the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate the subordination provided in this Section 4.06 and appoints the Trustee his attorney-in-fact for
any and all such purposes.
(n) Upon
any payment or distribution of assets of the Company referred to in this Section 4.06, the Trustee and the Holders of the Notes
shall be entitled to conclusively rely upon any order or decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up or similar case or proceeding is pending, or a certificate
of the trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders of the Notes, for the purpose of ascertaining the
Persons entitled to participate in such payment or distribution, the holders of 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 Section 4.06.
Section 4.03
Trustee’s Relation to Senior Indebtedness. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article in respect of any Senior Indebtedness at any time held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in Article 7 of the Base Indenture or elsewhere in the Indenture shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article shall apply to the Company’s obligations to the Trustee under
Article 7 of the Base Indenture.
With respect to
the 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, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into the Indenture against the Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness and, subject to the provisions of Article 7 of the Base Indenture, 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 money or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article or otherwise.
Section 4.04
Senior Indebtedness Entitled to Rely. Each Holder by accepting a Note acknowledges and agrees that the foregoing
subordination provisions are, and are intended to be, an inducement and a consideration to each holder of any Senior Indebtedness,
whether such Senior Indebtedness was created or acquired before or after the issuance of any Note, to acquire and continue to hold,
or to continue to hold, such Senior Indebtedness. The holders of Senior Indebtedness (including Designated Senior Indebtedness)
shall have the right to rely upon this Article, and no amendment or modification of the provisions contained herein shall diminish
the rights of such holders unless such holders shall have agreed in writing thereto.
Section 4.05
No Impairment of Subordination. The holders of Senior Indebtedness may extend, renew, increase, modify, amend or
restate the terms of the Senior Indebtedness or any security therefor and release, sell or exchange such Senior Indebtedness or
security and otherwise deal freely with the Company, all without affecting the liabilities and obligations of the parties to this
Indenture or the holders of the Notes.
Article
V
MISCELLANEOUS
Section 5.01
Trust Indenture Act. This 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
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 Supplemental Indenture, the latter provision shall control. If any provision of this
Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter
provision shall be deemed to apply to this Supplemental Indenture as so modified or excluded, as the case may be. Whenever this
Supplemental Indenture refers to a provision of the Trust Indenture Act, the provision is incorporated by reference in and made
a part of this Supplemental Indenture.
Section 5.02
Governing Law. This Supplemental Indenture and the Notes shall be governed by and construed in accordance with the
law of the state of New York without reference to its principles of conflict of laws (other than Section 5-1401 of the General
Obligations Law).
Section 5.03
Ratification. The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects
ratified and confirmed. The Trustee accepts the trusts created by the Base Indenture, as supplemented by this Supplemental Indenture,
and agrees to perform the same upon the terms and conditions of the Base Indenture, as supplemented by this Supplemental Indenture.
Section 5.04
Opinion of Counsel and Officer’s Certificate. In connection with the execution of this Supplemental indenture,
the Trustee shall be entitled to receive an Officer’s Certificate and Opinion of Counsel stating whether, in the opinion
of such individual, all conditions precedent are satisfied with respect to this Supplemental Indenture. The Trustee shall also
receive an Opinion of Counsel that this Supplemental Indenture is authorized and permitted, and that such Supplemental Indenture
is the legal, valid, and binding obligation of the Company, enforceable against it in accordance with its terms, subject to any
conditions specified in such Opinion of Counsel.
Section 5.05
Effectiveness. The provisions of this Supplemental Indenture shall become effective as of the date hereof.
Section 5.06
USA PATRIOT Act. The parties hereto acknowledge that, in accordance with Section 326 of the USA PATRIOT Act, the
Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship
or opens an account with the Trustee. The parties to this Supplemental Indenture agree that they will provide the Trustee with
such information as it may request in order for the Trustee to satisfy the requirements of the USA PATRIOT Act.
[Signature page
follows]
[Signature Page to First Supplemental
Indenture]
IN WITNESS WHEREOF,
the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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TRISTATE CAPITAL HOLDINGS, INC.
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By:
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/s/ David J. Demas
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Name:
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David J. Demas
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Title:
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Chief Financial Officer
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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/s/ George J. Rayzis
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Name:
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George J. Rayzis
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Title:
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Vice President
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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 DEPOSITARY OR
A NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS
SECURITY FOR ALL PURPOSES.
UNLESS AND UNTIL
IT IS EXCHANGED IN WHOLE OR IN PART FOR THE INDIVIDUAL SECURITIES REPRESENTED HEREBY, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE (I) BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, (II) BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR (III) BY A NOMINEE OF THE DEPOSITARY OR THE DEPOSITARY TO A SUCCESSOR DEPOSITARY OR A NOMINEE
OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY),
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.
TRISTATE
CAPITAL HOLDINGS, INC.
5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030
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No. 1
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CUSIP: 89678F AA8
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$60,000,000
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ISIN: US89678FAA84
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TRISTATE CAPITAL
HOLDINGS, INC., a Pennsylvania corporation (together with any successor corporation under the Indenture hereinafter referred to,
the “Company”), for value received, hereby promises to pay to CEDE & CO., or its registered assigns, the
principal sum of SIXTY MILLION DOLLARS ($60,000,000) on May 15, 2030 (the “Stated Maturity Date”), unless redeemed
prior to such date, and to pay interest thereon (i) from and including May 11, 2020, to but excluding May 15, 2025, unless redeemed
prior to such date (such period, the “Fixed Rate Period”), at a rate of 5.75% per annum, semi-annually in arrears
on May 15 and November 15 of each year, commencing on November 15, 2020 (each such date, a “Fixed Rate Interest Payment
Date”) and (ii) from and including May 15, 2025, to but excluding the Stated Maturity Date, unless redeemed on or subsequent
to May 15, 2025, but prior to the Stated Maturity Date (such period, the “Floating Rate Period”), at a rate
equal to Three-Month LIBOR, reset quarterly, plus 536 basis points, or such other rate as may be determined pursuant
to the Supplemental Indenture hereinafter referred to, quarterly in arrears on February 15, May 15, August 15 and November 15 of
each year, commencing on August 15, 2025, and ending on the Stated Maturity Date or earlier Redemption Date (each such date, a
“Floating Rate Interest Payment Date” and, together with each Fixed Rate Interest Payment Date, each an “Interest
Payment Date”). 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, 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 actual number
of days elapsed. If any Interest Payment Date or the Stated Maturity Date falls on a day that is not a Business Day, payment may
be made on the next succeeding Business Day and no interest on such payment will accrue for the period of such delay. All percentages
used in or resulting from any calculation of Three-Month LIBOR shall be rounded, if necessary, to the nearest one hundred-thousandth
of a percentage point, with 0.000005% rounded up to 0.00001%.
Payment of the principal
of and interest on this Note will be made in such coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts.
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.
[Signature page
follows.]
[Signature Page to Trustee’s
Certificate of Authentication]
IN WITNESS WHEREOF,
the Company has caused this Note to be signed manually or by facsimile by its duly authorized officer.
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TRISTATE CAPITAL HOLDINGS, INC.
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By:
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Name:
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Title:
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TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the
Securities of the series designated and referred to in the within-mentioned Indenture.
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Date of authentication:
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U.S. BANK NATIONAL ASSOCIATION, as Trustee
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By:
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Name:
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Title:
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REVERSE
OF NOTE
TRISTATE
CAPITAL HOLDINGS, INC.
5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030
This Note is one
of a duly authorized issue of Securities of the Company of a series designated as the “5.75% Fixed-to-Floating Rate Subordinated
Notes due 2030” (the “Notes”) initially issued in an aggregate principal amount of $60,000,000 on May
11, 2020. 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 Debt Securities Indenture dated as of
May 11, 2020 (the “Base Indenture” and, as the same may from time to time be amended, supplemented or otherwise
modified in accordance therewith, including by the Supplemental Indenture referred to below, the “Indenture”),
between the Company and U.S. Bank National Association, as Trustee (together with any successor trustee, the “Trustee”),
as supplemented and amended by the First Supplemental Indenture dated as of May 11, 2020, between the Company and the Trustee (the
“Supplemental 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 provisions of this Note modify, supplement or are inconsistent with those
of the Indenture, then the provisions of this Note shall govern to the extent that such provisions of this Note are not inconsistent
with (i) the provisions of the Supplemental Indenture or (ii) the 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.
The indebtedness
of the Company evidenced by the Notes, including the principal thereof and interest thereon, (i) to the extent and in the manner
set forth in the Indenture, is subordinate and subject in right of payment to the prior payment in full of all Senior Indebtedness,
whether outstanding at the date hereof or hereafter incurred, on the terms and subject to the terms and conditions set forth in
the Indenture, and (ii) shall rank pari passu in right of payment with all other Securities and with all other
unsecured subordinated indebtedness of the Company that is not by its terms subordinate and subject in right of payment to the
prior payment in full of debentures, notes, bonds or other evidences of indebtedness of types that include the Notes. Each Holder
of this Note, by the acceptance hereof, agrees to and shall be bound by such provisions of the Indenture and authorizes and directs
the Trustee on such Holder’s behalf to take such actions as may be necessary or appropriate to effectuate the subordination
so provided.
The Notes are intended
to be treated as Tier 2 Capital (or its then-equivalent if the Company were subject to such capital requirement) for purposes of
capital adequacy rules or regulations of the Board of Governors of the Federal Reserve System (or any successor regulatory authority
with jurisdiction over bank holding companies) (the “Federal Reserve”) as applicable to the Company and as the
same may be amended or supplemented from time to time. If an Event of Default with respect to the 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 6 of the Base Indenture and Section 3.02(m) and (n) of the Supplemental Indenture. Accordingly, the Holder
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 May 15, 2025. The Company may also, at its
option, redeem the Notes before the Maturity Date, in whole, but not in part, at any time, upon the occurrence of a Redemption
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
3 of the Base Indenture and Section 3.02(g) of the 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.
In the event that
any payment on the Notes is subject to withholding of any U.S. federal income tax or other tax or assessment (as a result of a
change in law or otherwise), the Company will not pay additional amounts with respect to such tax or assessment.
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 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 compliance by the Company
with certain provisions of the Indenture and 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 Securities Register
described in Section 2.07 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, or accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security Registrar and duly executed, by the Holder hereof or
its 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 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 (i) by The Depository
Trust Company (the “Depositary”) to a nominee of the Depositary, (ii) by a nominee of the Depositary to the
Depositary or another nominee of the Depositary, or (iii) by the Depositary or a nominee of the Depositary to a successor depositary
or any nominee of such successor. Ownership of beneficial interests in this Security will be shown on, and the transfer of that
ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interests
of persons that have accounts with the Depositary (“Participants”)) and the records of Participants (with respect
to interests of persons other than Participants). Beneficial interests in Notes owned by persons that hold through Participants
will be evidenced only by, and transfers of such beneficial interests with such Participants will be effected only through, records
maintained by such Participants. Except as provided below, owners of beneficial interests in this Note will not be entitled to
have any individual certificates and will not be considered the owners or Holders thereof under the Indenture.
Except in the
limited circumstances set forth in the Base Indenture, Participants and owners of beneficial interests in the Global Notes will
not be entitled to receive Notes in the form of individual certificates and will not be considered Holders. None of the Company,
the Trustee, the Security Registrar, the Paying Agent or any of their respective agents will be liable for any delay by the Depositary,
its nominee or any direct or indirect Participant in identifying the beneficial owners of the related Notes. The Company, the Trustee,
the Security Registrar, the Paying Agent and each of their respective agents may conclusively rely on, and will be protected in
relying on, instructions from the Depositary or its nominee for all purposes, including with respect to the registration and delivery,
and the respective principal amounts, of the Notes to be issued.
Except as provided
in Section 2 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 Depositary or its nominee. Accordingly, each person owning a beneficial interest
in a Global Note must rely on the procedures of the Depositary and, if such person is not a Participant, on the procedures of the
Participant through which such person owns its interest, to exercise any rights of a Holder under the Notes.
The laws of
some jurisdictions may require that certain purchasers of securities take physical delivery of those securities in definitive form.
Accordingly, the ability to transfer interests in the Notes represented by a Global Note to those persons may be limited. In addition,
because the Depositary can act only on behalf of its Participants, who in turn act on behalf of persons who hold interests through
Participants, the ability of a person having an interest in Notes represented by a Global Note to pledge or transfer such interest
to persons or entities that do not participate in the Depositary’s system, or otherwise to take actions in respect of such
interest, may be affected by the lack of an individual certificate in respect of such interest. None of the Company, the Trustee,
the Paying Agent and the Security Registrar will have any responsibility or liability for any aspect of the records relating to
or payments made on account of Notes by the Depositary, or for maintaining, supervising or reviewing any records of the Depositary
relating to the Notes.
The Trustee will
act as the Company’s Paying Agent with respect to the Notes through its Corporate Trust Office presently located at 100 Wall
Street, Suite 600, New York, New York 10005. 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 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 governed by and construed in accordance with the law of the state of New York without reference to its principles of conflict
of laws (other than Section 5-1401 of the General Obligations Law).
ASSIGNMENT FORM
To assign the within
Security, fill in the form below:
I or we assign and
transfer the within Security to:
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(Insert assignee’s legal name)
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(Insert assignee’s social security or tax I.D. number)
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(Print or type assignee’s name, address and zip code)
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and irrevocably
appoint the Trustee as agent to transfer this Security on the books of TriState Capital Holdings, Inc. The agent may substitute
another to act for it.
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Your Signature:
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(Sign exactly as your name appears on the other side of this Security)
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Your Name:
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Date:
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Signature Guarantee:
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SIGNATURE GUARANTEE
Signatures must
be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security 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 Security Registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.
