As filed with the Securities and Exchange Commission on July 12, 2024
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
Orange County Bancorp, Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
26-1135778
(I.R.S. Employer Identification No.)
212 Dolson Avenue
Middletown, New York 10940
(845) 341-5000
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)
Michael J. Gilfeather
President and Chief Executive Officer
212 Dolson Avenue
Middletown, New York 10940
(845) 341-5000
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies of all communications to:
Benjamin M. Azoff, Esq.
Luse Gorman, PC
5335 Wisconsin Avenue, N.W., Suite 780
Washington, D.C. 20015
(202) 274-2000
Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by market conditions and other factors.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box. ☐
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ☒
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. ☐
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. ☐
If this Form is a post-effective amendment to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box. ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.
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Smaller reporting company
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Emerging growth company
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If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. A registration statement relating to these securities has been filed with the Securities and Exchange Commission and has not yet been declared effective. The securities may not be sold until the registration statement has been declared effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED JULY 12, 2024
PROSPECTUS
$100.0 million
Debt Securities
Common Stock
Warrants
Purchase Contracts
Units
Subscription Rights
We may offer and sell, from time to time, up to $100.0 million, in one or more series, of our unsecured debt securities, which may consist of notes, debentures, or other evidences of indebtedness; shares of our common stock; warrants to purchase other securities; purchase contracts; units; or subscription rights consisting of any combination of the above securities. The debt securities may be convertible into or exchangeable for other securities of ours. This prospectus provides you with a general description of these securities. Each time we offer any securities pursuant to this prospectus, we will provide you with a prospectus supplement, and, if necessary, a pricing supplement, that will describe the specific amounts, prices and terms of the securities being offered. These supplements may also add, update or change information contained in this prospectus. To understand the terms of the securities offered, you should carefully read this prospectus with the applicable supplements, which together provide the specific terms of the securities we are offering.
Our common stock is traded on the Nasdaq Capital Market under the symbol “OBT.”
This prospectus may be used to offer and sell securities only if accompanied by the prospectus supplement and any applicable pricing supplement for those securities.
You should read this prospectus and any supplements carefully before you invest. Investing in our securities involves a high degree of risk. See the sections entitled “Risk Factors,” on page 4 of this prospectus, in any prospectus supplement and in the documents we file with the Securities and Exchange Commission that are incorporated in this prospectus by reference for a discussion of certain risks and uncertainties you should consider.
These securities are not deposits or obligations of a bank or savings association and are not insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined that this prospectus or any prospectus supplement is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is , 2024.
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS AND THE ACCOMPANYING PROSPECTUS SUPPLEMENT
We may provide information to you about the securities we offer in three separate documents that progressively provide more detail:
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this prospectus, which provides general information about Orange County Bancorp, Inc. and the securities being registered, some of which may not apply to your securities;
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a prospectus supplement, which describes the terms of a particular issuance of securities, some of which may not apply to your securities and which may not include information relating to the prices of the securities being offered; and
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if necessary, a pricing supplement that describes the pricing terms of your securities.
If the terms of your securities vary among the pricing supplement, the prospectus supplement and the prospectus, you should rely on the information in the following order of priority:
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the pricing supplement, if any;
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the prospectus supplement; and
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this prospectus.
We include cross-references in this prospectus and the prospectus supplement to captions in these materials where you can find further related discussions. The following Table of Contents and the Table of Contents included in any prospectus supplement provide the pages on which these captions are located.
Unless indicated in the applicable prospectus supplement, we have not taken any action that would permit us to publicly sell these securities in any jurisdiction outside the United States. If you are an investor outside the United States, you should inform yourself about, and comply with, any restrictions as to the offering of the securities and the distribution of this prospectus.
IMPLICATIONS OF BEING AN EMERGING GROWTH COMPANY
As a company with less than $1.235 billion in revenue during our last fiscal year, we qualify as an “emerging growth company” under the Jumpstart Our Business Startups Act of 2012, or the JOBS Act. An emerging growth company may take advantage of reduced reporting requirements and is relieved of certain other significant requirements that are otherwise generally applicable to public companies. As an emerging growth company:
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we may present as few as two years of audited financial statements and two years of related management discussion and analysis of financial condition and results of operations;
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we are exempt from the requirement to obtain an attestation and report from our auditors on management’s assessment of our internal control over financial reporting under the Sarbanes-Oxley Act of 2002;
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we are permitted to provide reduced disclosure regarding our executive compensation arrangements pursuant to the rules applicable to smaller reporting companies, which means we do not have to include a compensation discussion and analysis and certain other disclosures regarding our executive compensation; and
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we are not required to hold non-binding advisory votes on executive compensation or golden parachute arrangements.
In addition to the relief described above, the JOBS Act permits us an extended transition period for complying with new or revised accounting standards affecting public companies. We have irrevocably determined to take advantage of this extended transition period, which means that the financial statements incorporated by reference in this prospectus, as well as financial statements that we file in the future, may not be comparable to the financial statements of public companies that comply with such new or revised accounting standards on a non-delayed basis.
We will remain an emerging growth company until December 31, 2026, which is five years from the end of the fiscal year following the completion of our initial public offering in August 2021 unless we earlier cease to be an emerging growth company. We will cease to be an emerging growth company if we have more than $1.235 billion in annual gross revenues, have more than $700.0 million in market value of our common stock held by non-affiliates, or issue more than $1.0 billion of non-convertible debt in a three-year period.
TABLE OF CONTENTS
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ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) utilizing a “shelf” registration process. Under this shelf registration process, we may offer and sell, from time to time, the debt securities, common stock, warrants, purchase contracts, units or subscription rights consisting of a combination of any of the securities described in this prospectus in one or more offerings, up to a total dollar amount of $100.0 million. This prospectus provides you with a general description of the securities that we may offer. Each time we offer these securities, we will provide a prospectus supplement and, if necessary, a pricing supplement, that will contain specific information about the terms of the offer. The prospectus supplement and any pricing supplement may also add, update or change information contained in this prospectus.
You should read this prospectus, the prospectus supplement and any pricing supplement together with the additional information described under the heading “Where You Can Find More Information.”
The information contained in this document speaks only as of the date of this document unless the information specifically indicates that another date applies. We have not authorized anyone to give any information or make any representation about us that is different from, or in addition to, those contained in this prospectus or in any of the materials that we have incorporated into this prospectus. If anyone does give you information of this sort, you should not rely on it.
If you are in a jurisdiction where offers to sell, or solicitations of offers to purchase, the securities offered by this document are unlawful, or if you are a person to whom it is unlawful to direct these types of activities, then the offer presented in this document does not extend to you.
Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to “Orange County Bancorp,” the “Company,” “we,” “us,” “our” or similar references mean Orange County Bancorp, Inc., references to the “Bank” mean Orange Bank & Trust Company and references to “HVIA” mean Hudson Valley Investment Advisors, Inc.
CAUTIONARY NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus, including the information incorporated by reference into this prospectus, contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). These forward-looking statements reflect our current views with respect to, among other things, future events and our financial performance. These statements are often, but not always, made through the use of words or phrases such as “may,” “might,” “should,” “could,” “predict,” “potential,” “believe,” “expect,” “attribute,” “continue,” “will,” “anticipate,” “seek,” “estimate,” “intend,” “plan,” “projection,” “goal,” “target,” “outlook,” “aim,” “would,” “annualized” and “outlook,” or the negative version of those words or other comparable words or phrases of a future or forward-looking nature. These forward-looking statements include, but are not limited to:
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statements of our goals, intentions and expectations;
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statements regarding our business plans, prospects, growth and operating strategies;
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statements regarding the quality of our loan and investment portfolios; and
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estimates of our risks and future costs and benefits.
These forward-looking statements are not historical facts, and are based on current expectations, estimates and projections about our industry, management’s beliefs and certain assumptions made by management, many of which, by their nature, are inherently uncertain and beyond our control. Accordingly, we caution you that any such forward-looking statements are not guarantees of future performance and are subject to risks, assumptions, estimates and uncertainties that are difficult to predict. Although we believe that the expectations reflected in these forward-looking statements are reasonable as of the date made, actual results may prove to be materially different from the results expressed or implied by the forward-looking statements.
The following factors, among others, could cause actual results to differ materially from the anticipated results or other expectations expressed in the forward-looking statements:
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general economic conditions, either nationally or in our market areas, that are worse than expected;
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changes in the level and direction of loan delinquencies and write-offs and changes in estimates of the adequacy of the allowance for credit losses;
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our ability to access cost-effective funding;
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fluctuations in real estate values and both residential and commercial real estate market conditions;
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demand for loans and deposits in our market area;
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our ability to implement and change our business strategies;
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inflation, recession, and changes in the interest rate environment that reduce our margins or reduce the fair value of financial instruments;
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competition among depository and other financial institutions;
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the rate of delinquencies and amounts of loans charged-off;
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fluctuations in real estate values and both residential and commercial real estate market conditions;
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adverse changes in the securities markets;
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fluctuations in the stock market may have a significant adverse effect on transaction fees, client activity and client investment portfolio gains and losses related to our trust and wealth management business;
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changes in laws or government regulations or policies affecting financial institutions, including changes in regulatory fees and capital requirements;
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our ability to enter new markets successfully and capitalize on growth opportunities;
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our ability to capitalize on strategic opportunities;
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our ability to successfully introduce new products and services;
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our ability to successfully integrate into our operations any assets, liabilities, customers, systems and management personnel we may acquire and our ability to realize related revenue synergies and cost savings within expected time frames, and any goodwill charges related thereto;
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our ability to retain our existing customers;
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our ability to prevent or mitigate fraudulent activity;
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changes in consumer spending, borrowing and savings habits;
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changes in accounting policies and practices, as may be adopted by the bank regulatory agencies, the Financial Accounting Standards Board, the SEC or the Public Company Accounting Oversight Board;
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changes in our organization, compensation and benefit plans;
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changes in the quality or composition of our loan or investment portfolios;
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a breach in security of our information systems, including the occurrence of a cyber incident or a deficiency in cyber security;
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political instability or civil unrest;
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acts of war or terrorism;
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competition and innovation with respect to financial products and services by banks, financial institutions and non-traditional providers, including retail businesses and technology companies;
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the failure to attract and retain skilled people; and
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the fiscal and monetary policies of the federal government and its agencies.
The foregoing factors should not be construed as exhaustive and should be read in conjunction with other cautionary statements that are included in this prospectus, including other documents incorporated herein by reference. See “Where You Can Find More Information” and “Risk Factors” below. If one or more events related to these or other risks or uncertainties materialize, or if our underlying assumptions prove to be incorrect, actual results may differ materially from what we anticipate. Accordingly, you should not place undue reliance on any such forward-looking statements. Any forward-looking statement speaks only as of the date on which it is made, and we do not undertake any obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise. New risks and uncertainties arise from time to time, and it is not possible for us to predict those events or how they may affect us. In addition, we cannot assess the impact of each factor on our business or the extent to which any factor, or combination of factors, may cause actual results to differ materially from those contained in any forward-looking statements.
WHERE YOU CAN FIND MORE INFORMATION
The SEC maintains an internet site that contains reports, proxy and information statements, and other information regarding issuers that file electronically with the SEC. We file annual, quarterly and current reports, proxy statements and other information with the SEC. Our SEC filings are available to the public at the SEC’s web site at www.sec.gov.
The SEC allows us to “incorporate by reference” into this prospectus the information in documents we file with the SEC, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be a part of this prospectus and should be read with the same care. When we update the information contained in documents that have been incorporated by reference, by making future filings with the SEC, the information incorporated by reference in this prospectus is considered to be automatically updated and superseded. In other words, in all cases, if you are considering whether to rely on information contained in this prospectus or information incorporated by reference into this prospectus, you should rely on the information contained in the document that was filed later. We incorporate by reference the documents listed below (File No. 001-40711 except as otherwise indicated), which are considered to be a part of this prospectus (in each case, excluding any information “furnished” to, rather than filed with, the SEC, including, but not limited to, information furnished under Items 2.02 or 7.01 of Form 8-K and any corresponding information furnished with respect to such Items under Item 9.01 or as an exhibit):
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our Current Reports on Form 8-K filed with the SEC on February 13, 2024, February 21, 2024, February 27, 2024, May 17, 2024, May 23, 2024, and June 21, 2024; and
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All reports and other documents we subsequently file under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, prior to the termination of this offering, including all such documents we may file with the SEC after the date of the initial registration statement and prior to the effectiveness of the registration statement, but excluding any information furnished to, rather than filed with, the SEC, will also be incorporated by reference into this prospectus and deemed to be part of this prospectus from the date of the filing of such reports and documents. The most recent information that we file with the SEC automatically updates and supersedes older information. The information contained in any such filing will be deemed to be a part of this prospectus, commencing on the date on which the document is filed.
Any documents incorporated by reference into this prospectus are available without charge to you on the Internet at https://www.orangebanktrust.com/ on the “Investor Relations” page or if you call or write to: Jennifer Staub, Corporate Secretary, Orange County Bancorp, Inc., 212 Dolson Avenue, Middletown, New York 10940, telephone: (845) 341-5000. The reference to our website is not intended to be an active link and the information on our website is not, and you must not consider the information to be, a part of this prospectus.
You should rely only on the information contained or incorporated by reference in this prospectus and the applicable prospectus supplement. Neither we nor any underwriter or agent have authorized anyone else to provide you with additional or different information. We may only use this prospectus to sell securities if it is accompanied by a prospectus supplement. We are only offering these securities in jurisdictions where the offer is permitted. You should not assume that the information in this prospectus or the applicable prospectus supplement or any document incorporated by reference is accurate as of any date other than the dates of the applicable documents.
RISK FACTORS
Investing in our securities involves risks. Before making an investment decision, you should carefully consider the risks described under “Risk Factors” in the applicable prospectus supplement and in our most recent Annual Report on Form 10-K, which is incorporated into this prospectus by reference, as updated in our Quarterly Reports on Form 10-Q, together with all of the other information appearing in this prospectus or incorporated by reference into this prospectus, the prospectus supplement or any applicable pricing supplement, in light of your particular investment objectives and financial circumstances. In addition to those risk factors, there may be additional risks and uncertainties of which management is not aware or focused on or that management deems immaterial. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. The trading price of our securities could decline due to any of these risks, and you may lose all or part of your investment.
OUR COMPANY
Orange County Bancorp is a bank holding company incorporated under Delaware law in 2007 and headquartered in Middletown, New York. Through its wholly owned subsidiaries, Orange Bank & Trust Company, a New York state-chartered trust company, and Hudson Valley Investment Advisors, Inc., a registered investment advisor, the Company offers full-service commercial and consumer banking products and services and trust and wealth management services to small businesses, middle-market enterprises, local municipal governments and individuals in the Lower Hudson Valley region, the New York metropolitan area and nearby markets in Connecticut and New Jersey. The Company’s main office is located at 212 Dolson Avenue, Middletown, New York 10940 and its website address is https://www.orangebanktrust.com/. The information contained on our website should not be considered part of this prospectus or part of any prospectus supplement, and the reference to our website does not constitute incorporation by reference of the information contained on the website.
By combining the high-level personal service and relationship-based focus of a community bank with the extensive suite of financial products and services offered by our larger competitors, we believe we can capitalize on the substantial growth opportunities available in our market areas. We also offer a variety of deposit accounts to businesses and consumers, including checking accounts and a full line of municipal banking accounts. These activities, together with our 16 offices and one loan production office, generate a stable source of low-cost core deposits and a diverse loan portfolio with attractive risk-adjusted yields. As of March 31, 2024, the Company’s assets, loans, deposits and stockholders’ equity totaled $2.5 billion, $1.7 billion, $2.2 billion and $168.7 million, respectively. Orange Bank & Trust Company’s trust department and HVIA had a combined $1.7 billion in assets under management at March 31, 2024. The Company’s common stock is listed on the Nasdaq Capital Market under the symbol “OBT.”
As a bank holding company, the Company is subject to the supervision of the Board of Governors of the Federal Reserve System (the “FRB”). We are required to file with the FRB reports and other information regarding our business operations and the business operations of our subsidiaries. As a state-chartered trust company that is a member of the Federal Reserve System, the Bank is subject to primary supervision,
periodic examination and regulation by the New York State Department of Financial Services and by the FRB as its primary federal regulator.
USE OF PROCEEDS
Orange County Bancorp intends to use the net proceeds from the sale of any securities offered under this prospectus in the manner and for the purposes set forth in the applicable prospectus supplement, which may include general corporate purposes.
DESCRIPTION OF THE SECURITIES
This prospectus contains a summary of the debt securities, common stock, warrants, purchase contracts, units and subscription rights that may be offered under this prospectus. The following summaries are not meant to be a complete description of each security. The prospectus supplement and the pricing supplement, if applicable, contain the material terms and conditions for each security. You should read all of these documents as well as the documents filed as exhibits to or incorporated by reference into this prospectus and the registration statement of which this prospectus is a part. Capitalized terms used in this prospectus that are not defined will have the meanings given them in these documents.
Description of Debt Securities
General
We may issue, from time to time, debt securities, in one or more series, that will consist of either senior debt (“Senior Debt Securities”) or subordinated debt (“Subordinated Debt Securities”). Debt securities, whether senior or subordinated, may be issued as convertible debt securities or exchangeable debt securities.
Neither indenture limits the amount of debt securities that we may issue. We may, without the consent of the holders of the debt securities of any series, issue additional debt securities ranking equally with, and otherwise similar in all respects to, the debt securities of the series (except for any differences in the issue price and, if applicable, the initial interest accrual date and interest payment date) so that those additional debt securities will be consolidated and form a single series with the debt securities of the series previously offered and sold; provided that if the additional debt securities are not fungible with the debt securities of the series previously offered or sold for U.S. federal income tax purposes, the additional debt securities will have a separate CUSIP or other identifying number.
The indentures provide that we may issue debt securities up to the principal amount that we may authorize and may be in any currency or currency unit designated by us. Except for the limitations on consolidation, merger and sale of all or substantially all of our assets contained in the indentures, the terms of the indentures do not contain any covenants or other provisions designed to afford holders of any debt securities protection with respect to our operations, financial condition or transactions involving us.
We may issue the debt securities issued under the indentures as “discount securities,” which means they may be sold at a discount below their stated principal amount. These debt securities, as well as other debt securities that are not issued at a discount, may, for U.S. federal income tax purposes, be treated as if they were issued with “original issue discount,” because of interest payment and other characteristics. Special U.S. federal income tax considerations applicable to debt securities issued with original issue discount will be described in more detail in any applicable prospectus supplement.
Provisions of the Indentures
The applicable prospectus supplement for a series of debt securities that we issue will describe, among other things, the following terms of the offered debt securities:
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the designation of the debt securities;
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the price(s), expressed as a percentage of the principal amount, at which we will sell the debt securities;
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any limit on the aggregate principal amount of the debt securities;
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the date(s) when principal payments are due on the debt securities;
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the interest rate(s) on the debt securities, which may be fixed or variable, per annum or otherwise, and the method used to determine the rate(s), the dates on which interest will begin to accrue and be payable, and any regular record date for the interest payable on any interest payment date;
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the currency or currencies of payment of principal or interest;
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the place(s) where principal of, premium and interest on the debt securities will be payable;
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provisions governing redemption of the debt securities, including any redemption or purchase requirements pursuant to any sinking fund or analogous provisions or at the option of a holder of debt securities, and the redemption price and other detailed terms and provisions of such repurchase obligations;
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the denominations in which the debt securities will be issued, if other than minimum denominations of $1,000 and any integral multiple in excess thereof;
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whether the debt securities will be issued in the form of certificated debt securities or global debt securities;
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the portion of the principal of the debt securities payable upon declaration of acceleration of the maturity date, if other than the entire principal amount;
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any additional or modified events of default from those described in this prospectus or in the indenture and any change in the acceleration provisions described in this prospectus or in the indenture;
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any additional or modified covenants from those described in this prospectus or in the indenture with respect to the debt securities; and
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any depositaries, interest rate calculation agents, exchange rate calculation agents or other agents with respect to the debt securities.
The applicable prospectus supplement will set forth certain U.S. federal income tax considerations for holders of any debt securities and the securities exchange or quotation system on which any debt securities are listed or quoted, if any.
Debt securities issued by us will be structurally subordinated to all indebtedness and other liabilities of our subsidiaries, except to the extent any such subsidiary guarantees or is otherwise obligated to make payment on such debt securities.
Senior Debt Securities
Payment of the principal of, and premium, if any, and interest on, Senior Debt Securities will rank on a parity with all of our other unsecured and unsubordinated debt. Senior Debt Securities will be issued under the senior debt indenture.
Subordinated Debt Securities
Payment of the principal of, and premium, if any, and interest on, Subordinated Debt Securities will be subordinated and junior in right of payment to the prior payment in full of all of our unsubordinated debt. We will set forth in the applicable prospectus supplement relating to any Subordinated Debt Securities the subordination terms of such securities as well as the aggregate amount of outstanding indebtedness, as of the most recent practicable date, that by its terms would be senior to the Subordinated Debt Securities. We will also set forth in such prospectus supplement limitations, if any, on issuance of additional debt ranking senior to the Subordinated Debt Securities. Subordinated Debt Securities will be issued under the subordinated debt indenture.
Conversion or Exchange Rights
Debt securities may be convertible into or exchangeable for other securities or property of ours. The terms and conditions of conversion or exchange will be set forth in the applicable prospectus supplement. The terms will include, among others, the following:
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the conversion or exchange price;
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the conversion or exchange period;
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provisions regarding our ability or the ability of the holder to convert or exchange the debt securities;
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events requiring adjustment to the conversion or exchange price; and
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provisions affecting conversion or exchange in the event of our redemption of the debt securities.
Consolidation, Merger or Sale
The indentures provide that we may not consolidate with or merge with or into, or sell or convey all or substantially all of our assets to any person, firm or corporation, unless:
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we are the surviving corporation or the successor corporation (if not us) is a corporation organized and validly existing under the laws of any United States domestic jurisdiction and expressly assumes, by a supplemental indenture satisfactory to the applicable trustee, our obligations under the indenture; and
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immediately after giving effect to such transaction, we, or the successor corporation, are not in default in the performance of any covenant or condition under the indenture.
Events of Default
For any series of debt securities, in addition to any event of default described in the prospectus supplement applicable to that series, an event of default will include the following events:
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default in the payment when due of principal of any debt security of that series;
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default in the payment when due of any sinking or analogous fund payment in respect of any debt security of that series;
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default in the payment when due of any interest on any debt securities of that series, and continuance of such default for a period of 90 days;
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default in the performance or breach of any other covenant or agreement in the indenture that applies to such series, which default continues for a period of 90 days after we have received written notice of the failure to perform in the manner specified in the indenture by the holders of at least 25% in aggregate principal amount of the outstanding debt securities;
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certain events of bankruptcy, insolvency or reorganization involving us or our material subsidiaries; and
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any other event of default provided in the applicable resolution of our board of directors or the officers’ certificate or supplemental indenture under which we issue such series of debt securities.
An event of default for a particular series of debt securities does not necessarily constitute an event of default for any other series of debt securities issued under the indentures.
If an event of default with respect to any outstanding debt securities occurs and is continuing, then the trustee or the holders of at least 25% in aggregate principal amount of the outstanding debt securities of that series may, by written notice to us (and to the trustee if given by the holders), accelerate the payment of the principal (or, if the debt securities of that series are discount securities, that portion of the principal amount as may be specified in the terms of that series) of on all debt securities of that series. Following acceleration, payments on our subordinated debt securities, if any, will be subject to the subordination provisions described above under “Subordinated Debt Securities.” At any time after acceleration with respect to debt securities of any series, but before the trustee has obtained a court judgment or decree for payment of the amounts due, the holders of a majority in principal amount of the outstanding debt securities of that series may rescind and annul the acceleration of all events of default. The prospectus supplement relating to any series of debt securities that are discount securities will contain particular provisions relating to acceleration of a portion of the principal amount of such discount securities upon the occurrence of an event of default.
Obligations of the Trustee
The indentures provide that the trustee will be under no obligation to exercise any rights or powers under such indenture at the request of any holder of outstanding debt securities unless the trustee is indemnified against any costs, liability or expense.
Remedies
Subject to certain rights of the trustee, the holders of a majority in principal amount of the outstanding debt securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the trustee or exercising any trust or power conferred on the trustee with respect to the debt securities of that series.
No holder of any debt security may institute any proceeding, judicial or otherwise, with respect to the indenture or for the appointment of a receiver or trustee, or for any remedy under the indenture, unless:
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such holder has previously given written notice to the trustee of a continuing event of default with respect to the debt securities of that series;
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the holders of not less than 25% in aggregate principal amount of the outstanding debt securities of that series have made written request to the trustee to institute proceedings in respect of such event of default in its own name as trustee under the indenture;
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such holder or holders have offered to the trustee indemnity against the costs, expenses and liabilities to be incurred in complying with such request;
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the trustee for 60 days after its receipt of such notice, request, and offer of indemnity has failed to institute any such proceeding; and
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no direction inconsistent with such written request has been given to the trustee during such 60-day period by the holders of a majority in aggregate principal amount of the outstanding debt securities of that series.
Notwithstanding the foregoing, the holder of any debt security will have an absolute and unconditional right to receive payment of the principal of, premium and any interest on that debt security on or after the due dates expressed in that debt security and to institute suit for the enforcement of payment.
Under the indentures, we must furnish the trustee a statement as to compliance with such indenture within 120 days after the end of our fiscal year (beginning with the fiscal year ending immediately following the execution of such indenture). The indentures provide that, other than with respect to payment defaults, the trustee may withhold notice to the holders of debt securities of any series of a default or event of default if it in good faith determines that withholding notice is in the interests of the holders of those debt securities.
Registered Global Securities
We may issue the debt securities of a series in whole or in part in the form of one or more fully registered global securities that we will deposit with a depositary or with a nominee for a depositary identified in the applicable prospectus supplement and registered in the name of such depositary or nominee. In such case, we will issue one or more registered global securities denominated in an amount equal to the aggregate principal amount of all of the debt securities of the series to be issued and represented by such registered global security or securities.
Unless and until it is exchanged in whole or in part for debt securities in definitive registered form, a registered global security may not be transferred except as a whole:
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by the depositary for such registered global security to its nominee,
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by a nominee of the depositary to the depositary or another nominee of the depositary, or
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by the depositary or its nominee to a successor of the depositary or a nominee of the successor.
The prospectus supplement relating to a series of debt securities will describe the specific terms of the depositary arrangement with respect to any portion of such series represented by a registered global security. We anticipate that the following provisions will apply to all depositary arrangements for debt securities:
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ownership of beneficial interests in a registered global security will be limited to persons that have accounts with the depositary for the registered global security, those persons being referred to as “participants,” or persons that may hold interests through participants;
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upon the issuance of a registered global security, the depositary for the registered global security will credit, on its book-entry registration and transfer system, the participants’ accounts with the respective principal amounts of the debt securities represented by the registered global security beneficially owned by the participants;
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any dealers, underwriters, or agents participating in the distribution of the debt securities will designate the accounts to be credited; and
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ownership of any beneficial interest in the registered global security will be shown on, and the transfer of any ownership interest will be effected only through, records maintained by the depositary for the registered global security (with respect to interests of participants) and on the records of participants (with respect to interests of persons holding through participants).
The laws of some states may require that certain purchasers of securities take physical delivery of the securities in definitive form. These laws may limit the ability of those persons to own, transfer or pledge beneficial interests in registered global securities.
So long as the depositary for a registered global security, or its nominee, is the registered owner of the registered global security, the depositary or the nominee, as the case may be, will be considered the sole owner or holder of the debt securities represented by the registered global security for all purposes under the indenture.
Except as set forth below, owners of beneficial interests in a registered global security:
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will not be entitled to have the debt securities represented by a registered global security registered in their names;
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will not receive or be entitled to receive physical delivery of the debt securities in the definitive form; and
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will not be considered the owners or holders of the debt securities under the indenture.
Accordingly, each person owning a beneficial interest in a registered global security must rely on the procedures of the depositary for the registered global security and, if the person is not a participant, on the procedures of a participant through which the person owns its interest, to exercise any rights of a holder under the indenture.
We understand that under existing industry practices, if we request any action of holders or if an owner of a beneficial interest in a registered global security desires to give or take any action that a holder is entitled to give or take under the indenture, the depositary for the registered global security would authorize the participants holding the relevant beneficial interests to give or take the action, and those participants would authorize beneficial owners owning through those participants to give or take the action or would otherwise act upon the instructions of beneficial owners holding through them.
We will make payments of principal and premium, if any, and interest, if any, on debt securities represented by a registered global security registered in the name of a depositary or its nominee to the depositary or its nominee, as the case may be, as the registered owners of the registered global security. None of us, the trustee or any other agent of us or the trustee will be responsible or liable for any aspect of the records relating to, or payments made on account of, beneficial ownership interests in the registered global security or for maintaining, supervising or reviewing any records relating to the beneficial ownership interests.
We expect that the depositary for any debt securities represented by a registered global security, upon receipt of any payments of principal and premium, if any, and interest, if any, in respect of the registered global security, will immediately credit participants’ accounts with payments in amounts proportionate to their respective beneficial interests in the registered global security as shown on the records of the depositary. We also expect that standing customer instructions and customary practices will govern payments by participants to owners of beneficial interests in the registered global security held through the participants, as is now the case with the securities held for the accounts of customers in bearer form or registered in “street name.” We also expect that any of these payments will be the responsibility of the participants.
If the depositary for any debt securities represented by a registered global security is at any time unwilling or unable to continue as depositary or ceases to be a clearing agency registered under the Exchange Act, we will appoint an eligible successor depositary. If we fail to appoint an eligible successor depositary, we will issue the debt securities in definitive form in exchange for the registered global security. In addition, we may at any time and in our sole discretion decide not to have any of the debt securities of a series represented by one or more registered global securities. In such event, we will issue debt securities of that series in a definitive form in exchange for all of the registered global securities representing the debt securities. The trustee will register any debt securities issued in definitive form in exchange for a registered global security in such name or names as the depositary, based upon instructions from its participants, instructed to the trustee.
Defeasance of Debt Securities and Certain Covenants in Certain Circumstances
Legal Defeasance
We may deposit with the trustee, as trust funds, cash or U.S. government securities in an amount that, through the payment of interest and principal in accordance with their terms, will provide, not later than one day before the due date of any payment of money, an amount in cash that is sufficient to make all payments of principal and interest on, and any mandatory sinking fund payments in respect of, the debt securities of that series on the due dates for such payments in accordance with the terms of the indenture and those debt securities. If we make such a deposit, unless otherwise provided under the applicable series of debt securities, we will be discharged from any and all obligations in respect of the debt securities of such series (except for obligations relating to the transfer or exchange of debt securities and the replacement of stolen, lost or mutilated debt securities and relating to maintaining paying agencies and the treatment of funds held by paying agents and certain rights of the trustee and our obligations with respect thereto). However, this discharge may occur only if, among other things, we have delivered to the trustee a legal opinion stating that we have received from, or there has been published by, the U.S. Internal Revenue Service a ruling or, since the date of execution of the indenture, there has been a change in the applicable U.S. federal income tax law, in either case to the effect that, and, based thereon confirming that, the holders of the debt securities of that series will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance and will be subject to U.S. federal income tax on the same amounts and in the same manner and at the same times as would have been the case if such defeasance had not occurred.
Defeasance of Certain Covenants
Under the indentures (and unless otherwise provided by the terms of the applicable series of debt securities), upon making the deposit and delivering the legal opinion described in “Legal Defeasance” above, we will not need to comply with certain covenants set forth in the indentures, as well as any additional covenants that may be set forth in the applicable prospectus supplement, and any such noncompliance will not constitute a default or an event of default with respect to the debt securities of that series, or covenant defeasance.
Covenant Defeasance and Events of Default
If we exercise our option to effect covenant defeasance with respect to any series of debt securities and the debt securities of that series are declared due and payable because of the occurrence of any event of default, the amounts on deposit with the trustee will be sufficient to pay amounts due on the debt securities of that series at the time of their stated maturity but may not be sufficient to pay amounts due on the debt securities of that series at the time of the acceleration resulting from the event of default. We will remain liable for those payments.
Satisfaction and Discharge
We may discharge our obligations under either indenture and the debt securities of a series (except for certain surviving rights of the trustee and our obligations in connection therewith) if: (a) all outstanding debt securities of that series and all other outstanding debt securities issued under such indenture (i) have been delivered for cancellation, or (ii) (1) have become due and payable, (2) will become due and payable at their
stated maturity within one year or (3) are to be called for redemption within one year under arrangements satisfactory to the trustee for the giving of notice and redemption by the trustee (and in the case of clauses (1), (2) and (3), we have deposited with the trustee an amount sufficient to pay and discharge the principal of (and premium, if any), and interest on all outstanding debt securities and any other sums due on the stated maturity date or redemption date, as the case may be); (b) we have paid all other sums payable by us under such indenture; and (c) we have delivered an officers’ certificate and opinion of counsel confirming compliance with all conditions precedent relating to the satisfaction and discharge of the indenture.
Amendments to the Indentures
Each indenture provides that we and the trustee may enter into supplemental indentures without the consent of the holders of debt securities:
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to evidence the succession of a corporation to the Company, or successive successors, as obligor under the indenture and the assumption by any such successor of the covenants, agreements and obligations of the Company in the indenture and in the debt securities;
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to add to the covenants of the Company such further covenants, restrictions, conditions or provisions as its board of directors consider to be for the protection of the holders of the debt 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 the indenture, with such period of grace, if any, and subject to such conditions as such supplemental indenture may provide;
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to establish any series of debt securities and the form or terms of the debt securities of a series, including, without limitation, subordination provisions and any conversion or exchange provisions applicable to the debt securities that are convertible into or exchangeable for other securities or property and any deletions from or additions or changes to the indenture in connection therewith;
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to add any additional events of default with respect to all or any series of debt securities or change any provisions regarding acceleration of maturity upon an event of default;
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to supplement any of the provisions of the indenture to such extent as will be necessary to permit or facilitate the defeasance, covenant defeasance and/or satisfaction and discharge of any series of outstanding debt securities, provided that any such action will not adversely affect the interests of any holder of an outstanding debt security of such series or any other security in any material respect;
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to add or change any of the provisions of the indenture to such extent as is necessary to permit or facilitate the issuance of debt securities, registrable or not registrable as to principal;
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to add or change provisions with respect to conversion or exchange rights of holders of debt securities of any series;
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in the case of any series of debt securities that are convertible into or exchangeable for commodities or for the securities of the Company, to safeguard or provide for the conversion or exchange rights, as the case may be, of such debt securities in the event of any reclassification or change of outstanding securities or any merger, consolidation, statutory share exchange or combination of the Company with or into another person or any sale, lease, assignment, transfer, disposition or other conveyance of all or substantially all of the properties and assets of the Company to any other person or other similar transactions, if expressly required by the terms of such series of debt securities;
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to add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of debt securities of any series;
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to modify, eliminate or add to the provisions of the indenture to such extent as is necessary to effect the qualification of the indenture under the Trust Indenture Act of 1939, or under any similar federal statute hereafter enacted, and to add to the indenture such other provisions as may be expressly permitted by the Trust Indenture Act of 1939, excluding certain provisions thereof;
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to modify, eliminate or add to the provisions of the indenture, if the change or elimination (i) becomes effective only when there are no debt securities outstanding of any series created prior to execution
of such supplemental indenture that is entitled to the benefit of such provision or (ii) will not apply to the any debt securities outstanding at the time of such change or elimination;
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to conform the indenture or the debt securities to the description thereof in the related prospectus, offering memorandum or disclosure document (as provided in an officers’ certificate delivered to the trustee);
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to cure any ambiguity or to correct or supplement any provision in the indenture or in any supplemental indenture that may be defective or inconsistent with any other provision contained in the indenture or supplemental indenture;
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to add guarantees with respect to, or to secure, any series of debt security;
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to evidence and provide for the acceptance and appointment by a successor trustee or facilitate the administration of the trust under the indenture by more than one trustee; or
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to make any change that does not adversely affect the rights of any holder of debt securities of any series issued under the indenture.
Each indenture also provides that we and the trustee may, with the consent of the holders of not less than a majority in aggregate principal amount of the outstanding debt securities of all series of Senior Debt Securities or Subordinated Securities, as the case may be, then outstanding and affected thereby (voting as one class), add any provisions to, or change in any manner, eliminate in any way the provisions of, the indenture or supplemental indenture or modify in any manner the rights of the holders of the debt securities. We and the trustee may not, however, without the consent of the holder of each outstanding debt security affected thereby:
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extend the fixed maturities of any outstanding debt securities or reduce the principal amount or premium, if any, or reduce the rate or extend the time of payment of interest;
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reduce the percentage in aggregate principal amount of the outstanding debt securities, the consent of whose holders is required to amend or supplement the indenture or any supplemental indenture;
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modify the subordination provisions in a manner adverse to the holders of such debt securities; or
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make any change to provisions of the indenture to remove any of the limitations in this paragraph upon us or the trustee.
Concerning the Trustee
The indentures limit the right of the trustee, should it become a creditor of ours, to obtain payment of claims or secure its claims. The trustee is permitted to engage in certain other transactions. However, if the trustee acquires any conflicting interest, and there is a default under the debt securities of any series for which it is trustee, the trustee must eliminate the conflict or resign.
No Individual Liability of Directors, Officers, Employees or Stockholders
The indentures provide that none of our directors, officers, employees or stockholders will have any liability for any of our obligations under the debt securities or the indentures or for any claim based on, in respect of or by reason of such obligations or their creation. Each holder of debt securities by accepting a debt security waives and releases all such liability. The waiver and release will be part of the consideration for the issue of the debt securities.
Governing Law
The indentures and the debt securities will be governed by, and construed in accordance with, the laws of the State of New York.
Description of Common Stock
The following summary contains a description of the material terms of our common stock. Each share of common stock has the same relative rights as, and is identical in all respects to, each other share of common stock. The rights of the holders of our common stock are governed by the Company’s certificate of incorporation and bylaws and by the Delaware General Corporation Law.
General
Our authorized capital consists of 15,000,000 shares of common stock, $0.50 par value, and no shares of preferred stock. At March 31, 2024, there were 5,657,458 shares of common stock outstanding. All issued and outstanding shares at that date were fully paid and nonassessable.
Dividends. Delaware law generally limits dividends to our capital surplus or, if there is no capital surplus, our net profits for the fiscal year in which the dividend is declared and/or the preceding fiscal year. The holders of our common stock will be entitled to receive and share equally in dividends as may be declared by our board of directors out of funds legally available therefor.
Voting Rights. The holders of our common stock have exclusive voting rights in Orange County Bancorp. They elect our board of directors and act on other matters as are required to be presented to them under Delaware law or as are otherwise presented to them by the board of directors. Each holder of common stock is entitled to one vote per share and does not have any right to cumulate votes in the election of directors.
Liquidation or Dissolution. In the unlikely event of liquidation, dissolution or winding up of Orange County Bancorp, the holders of its common stock would be entitled to receive, after payment or provision for payment of all its debts and liabilities, all of the assets of Orange County Bancorp available for distribution.
Preemptive Rights. Holders of the common stock of Orange County Bancorp will not be entitled to preemptive rights with respect to any shares that may be issued. The common stock is not subject to redemption.
Restrictions on Acquisition of Orange County Bancorp, Inc.
The following discussion is a general summary of the material provisions of Delaware law, our Certificate of Incorporation and bylaws and certain other regulatory provisions that may be deemed to have an “anti-takeover” effect. The following description is necessarily general and is not intended to be a complete description of the document or regulatory provision in question.
Directors. The board of directors is divided into three classes. The members of each class are elected for a term of three years and only one class of directors is elected annually. Thus, it would generally take at least two annual elections to replace a majority of the board of directors. In addition, the board of directors has the power to fill board vacancies, whether occurring by reason of an increase in the number of directors or by resignation, death, removal or otherwise.
No Cumulative Voting. The Certificate of Incorporation does not provide for cumulative voting for the election of directors.
Plurality Voting. The Certificate of Incorporation provides that the directors will be elected by the plurality of the shares voted in person or represented by proxy and entitled to vote at the meeting.
Stockholder Nominations and Proposals. The Bylaws provide that any stockholder desiring to make a nomination for the election of directors or a proposal for new business at an annual meeting of stockholders must submit written notice to the Company at least 90 days prior to the anniversary date of the previous year’s annual meeting. In order for a stockholder to make a director nomination, such stockholder or group of stockholders must beneficially own more than 5% of the Company’s outstanding common stock and have held such stock for at least one year prior to the date of the nomination.
Special Meetings of Stockholders. For a special stockholders’ meeting to be called by stockholders, our Bylaws require the request of record holders of at least 25% of the outstanding shares of our capital stock entitled to vote at a meeting to call a special stockholders’ meeting.
Restrictions on Removing Directors from Office. The Bylaws provide that directors may be removed only for cause, and only by the affirmative vote of the holders of at least a majority of the voting power of all of our then-outstanding common stock entitled to vote generally in the election of directors.
Business Combinations with Related Persons. Under the Certificate of Incorporation, business combinations between the Company and a person owning 10% or more of the Company’s stock must be approved by the affirmative vote of at least 80% of the votes entitled to be cast and a majority of the outstanding votes entitled to be cast, excluding any shares owned by a 10% stockholder. This super-majority vote requirement does not apply if two-thirds of the directors that are unaffiliated with the related person (“disinterested directors”) approve the business combination. Delaware law provides a similar restriction on business combinations with interested stockholders, which also does not apply if the business combination is approved by two-thirds of the disinterested directors.
Change in Control Law and Regulations. Under the Change in Bank Control Act, a federal law, no person may acquire control of an insured bank or its parent holding company unless the FRB has been given 60 days’ prior written notice and has not issued a notice disapproving the proposed acquisition. The FRB takes into consideration certain factors, including the financial and managerial resources of the acquirer and the competitive effects of the acquisition. In addition, federal regulations provide that no company may acquire control of a bank without the prior approval of the FRB. Any company that acquires such control becomes a “bank holding company” subject to registration, examination and regulation by the FRB.
Control, as defined under federal law, means ownership, control of or holding irrevocable proxies representing more than 25% of any class of voting stock, control in any manner of the election of a majority of the company’s directors, or a determination by the FRB that the acquirer has the power to direct, or directly or indirectly exercise a controlling influence over, the management or policies of the institution. Acquisition of more than 10% of any class of a bank holding company’s voting stock constitutes a rebuttable determination of control under the regulations under certain circumstances including where, as is the case with Orange County Bancorp, the issuer has registered securities under Section 12 of the Securities Exchange Act of 1934. FRB regulations provide that parties seeking to rebut control will be provided an opportunity to do so in writing.
Listing and Trading
Our common stock is listed on the Nasdaq Capital Market under the symbol “OBT.”
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is Computershare Trust Company, N.A., Canton, Massachusetts.
Description of Warrants
We may issue warrants to purchase debt securities or common stock. We may offer warrants separately or together with one or more additional warrants, debt securities or common stock, or any combination of those securities in the form of units, as described in the appropriate prospectus supplement. If we issue warrants as part of a unit, the accompanying prospectus supplement will specify whether those warrants may be separated from the other securities in the unit prior to the warrants’ expiration date. Below is a description of certain general terms and provisions of the warrants that we may offer. Further terms of the warrants will be described in the applicable prospectus supplement.
The applicable prospectus supplement will contain, where applicable, the following terms of and other information relating to the warrants:
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the specific designation and aggregate number of, and the price at which we will issue, the warrants;
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the currency or currency units in which the offering price, if any, and the exercise price are payable;
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the date on which the right to exercise the warrants will begin and the date on which that right will expire or, if you may not continuously exercise the warrants throughout that period, the specific date or dates on which you may exercise the warrants;
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any applicable anti-dilution provisions;
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any applicable redemption or call provisions;
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the circumstances under which the warrant exercise price may be adjusted;
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whether the warrants will be issued in fully registered form or bearer form, in definitive or global form or in any combination of these forms, although, in any case, the form of a warrant included in a unit will correspond to the form of the unit and of any security included in that unit;
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any applicable material U.S. federal income tax consequences;
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the identity of the warrant agent for the warrants and of any execution or paying agents, transfer agents, registrars or other agents;
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the proposed listing, if any, of the warrants or any securities purchasable upon exercise of the warrants on any securities exchange;
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the designation and terms of the debt securities or common stock purchasable upon exercise of the warrants;
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the designation, aggregate principal amount, currency and terms of the debt securities that may be purchased upon exercise of the warrants;
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if applicable, the designation and terms of the debt securities or common stock with which the warrants are issued and the number of warrants issued with each security;
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if applicable, the date from and after which the warrants and the related debt securities or common stock will be separately transferable;
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the principal amount of debt securities or the number of shares of common stock purchasable upon exercise of a warrant and the price at which those shares may be purchased;
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if applicable, the minimum or maximum amount of the warrants that may be exercised at any one time;
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information with respect to book-entry procedures, if any;
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whether the warrants are to be sold separately or with other securities as parts of units; and
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any additional terms of the warrants, including terms, procedures and limitations relating to the exchange and exercise of the warrants.
Description of Purchase Contracts
We may issue purchase contracts, including purchase contracts issued as part of a unit with one or more other securities, for the purchase or sale of our debt securities or common stock. The price of our debt securities or price per share of our common stock, as applicable, may be fixed at the time the purchase contracts are issued or may be determined by reference to a specific formula contained in the purchase contracts. We may issue purchase contracts in such amounts and in as many distinct series as we wish.
The applicable prospectus supplement may contain, where applicable, the following information about the purchase contracts issued under it:
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whether the purchase contracts obligate the holder to purchase or sell, or both, our debt securities or common stock, as applicable, and the nature and amount of each of those securities, or method of determining those amounts;
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whether the purchase contracts are to be prepaid or not;
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whether the purchase contracts are to be settled by delivery, or by reference or linkage to the value, performance or level of our common stock;
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any acceleration, cancellation, termination or other provisions relating to the settlement of the purchase contracts;
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U.S. federal income tax considerations relevant to the purchase contracts; and
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whether the purchase contracts will be issued in fully registered global form.
The applicable prospectus supplement will describe the terms of any purchase contracts. The preceding description and any description of purchase contracts in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the purchase contract agreement and, if applicable, collateral arrangements and depositary arrangements relating to such purchase contracts.
Description of Units
We may issue units comprised of two or more of the other securities described in this prospectus in any combination. Each unit will be issued so that the holder of the unit is also the holder of each security included in the unit. Thus, the holder of a unit will have the rights and obligations of a holder of each included security. The unit agreement under which a unit is issued may provide that the securities included in the unit may not be held or transferred separately, at any time or at any time before a specified date.
The applicable prospectus supplement may describe:
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the designation and terms of the units and of the securities comprising the units, including whether and under what circumstances those securities may be held or transferred separately;
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any provisions for the issuance, payment, settlement, transfer or exchange of the units or of the securities comprising the units;
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the terms of the unit agreement governing the units;
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U.S. federal income tax considerations relevant to the units; and
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whether the units will be issued in fully registered or global form.
The preceding description and any description of units in the applicable prospectus supplement does not purport to be complete and is subject to and is qualified in its entirety by reference to the form of unit agreement that will be filed with the SEC in connection with the offering of such units, and, if applicable, collateral arrangements and depositary arrangements relating to such units.
Description of Subscription Rights
The following briefly summarizes the general provisions of subscription rights to purchase additional shares of our common stock or debt securities, which we may issue. The specific terms of any subscription rights, including the period during which the subscriptions rights may be exercised, the manner of exercising such subscription rights, and the transferability of subscription rights, will be disclosed in the applicable prospectus supplement.
General
We may distribute subscription rights, which may or may not be transferable, to the holders of our common stock or debt securities as of a record date set by our board of directors, at no cost to such holders. Each holder will be given the right to purchase a specified number of whole shares of our common stock or debt securities for every share of our common stock or our debt securities that the holder thereof owned on such record date, as set forth in the applicable prospectus supplement. The subscription rights will be evidenced by subscription rights certificates, which may be in definitive or book-entry form. Each right will entitle the holder to purchase shares of our common stock or our debt securities at a rate and price to be established by our board of directors, as set forth in the applicable prospectus supplement. If holders of rights wish to exercise their subscription rights, they must do so before the expiration date of the subscription rights offering, as set forth in the applicable prospectus supplement. Upon the expiration date, the subscription rights will expire and will no longer be exercisable, unless, in our sole discretion prior to the expiration date, we extend the subscription rights offering.
Exercise Price
Our board of directors will determine the exercise price or prices for the subscription rights based upon a number of factors, including, without limitation, our business prospects; our capital requirements; the price or prices at which an underwriter or standby purchasers may be willing to purchase securities that remain unsold in the subscription rights offering; and general conditions in the securities markets, especially for securities of financial institutions.
The subscription price may or may not reflect the actual or long-term fair value of the common stock or debt securities offered in the subscription rights offering. We provide no assurances as to the market values or liquidity of any subscription rights issued, or as to whether or not the market prices of the common stock or debt securities subject to the subscription rights will be more or less than the subscription rights’ exercise price during the term of the rights or after the rights expire.
Exercising Rights; Fees and Expenses
The manner of exercising subscription rights will be set forth in the applicable prospectus supplement. Any subscription agent or escrow agent will be set forth in the applicable prospectus supplement. We will pay all fees charged by any subscription agent and escrow agent in connection with the distribution and exercise of subscription rights. Subscription rights holders will be responsible for paying all other commissions, fees, taxes or other expenses incurred in connection with their transfer of subscription rights that are transferable. Neither we nor the subscription agent will pay such expenses.
Expiration of Rights
The applicable prospectus supplement will set forth the expiration date and time (“Expiration Date”) for exercising subscription rights. If holders of subscription rights do not exercise their subscription rights prior to such time, their subscription rights will expire and will no longer be exercisable and will have no value.
We will extend the Expiration Date as required by applicable law and may, in our sole discretion, extend the Expiration Date. If we elect to extend the Expiration Date, we will issue a press release announcing such extension prior to the scheduled Expiration Date.
Withdrawal and Termination
We may withdraw the subscription rights offering at any time prior to the Expiration Date for any reason. We may terminate the subscription rights offering, in whole or in part, at any time before completion of the subscription rights offering if there is any judgment, order, decree, injunction, statute, law or regulation entered, enacted, amended or held to be applicable to the subscription rights offering that in the sole judgment of our board of directors would or might make the subscription rights offering or its completion, whether in whole or in part, illegal or otherwise restrict or prohibit completion of the subscription rights offering. We may waive any of these conditions and choose to proceed with the subscription rights offering even if one or more of these events occur. If we terminate the subscription rights offering, in whole or in part, all affected rights will expire without value, and all subscription payments received by the subscription agent will be returned promptly without interest.
Rights of Subscribers
Holders of subscription rights will have no rights as holders with respect to our common stock or debt securities for which the rights may be exercised until they have exercised their rights by payment in full of the exercise price and in the manner provided in the applicable prospectus supplement, and such common stock or debt securities, as applicable, have been issued to such persons. Holders of subscription rights will have no right to revoke their subscriptions or receive their monies back after they have completed and delivered the materials required to exercise their subscription rights and have paid the exercise price to the subscription agent. All exercises of rights will be final and cannot be revoked by the holder of rights.
Regulatory Limitations
We will not be required to issue any person or group of persons shares of our common stock or debt securities pursuant to the subscription rights offering if, in our sole opinion, such person would be required to give prior notice to or obtain prior approval from, any state or federal governmental authority to own or control such securities if, at the time the rights offering is scheduled to expire, such person has not obtained such clearance or approval in form and substance reasonably satisfactory to us.
Standby Agreements
We may enter into one or more separate agreements with one or more standby underwriters or other persons to purchase, for their own account or on our behalf, our common stock or debt securities not subscribed for in the subscription rights offering. The terms of any such agreements will be described in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
We may sell our securities through underwriters or dealers, directly to purchasers, through agents, or through any combination thereof.
Each time that we use this prospectus to sell our securities, we will also provide a prospectus supplement that contains the specific terms of the offering. The prospectus supplement will set forth the terms of the offering of such stock, including:
•
the name or names of any underwriters, dealers or agents and the type and amounts of securities underwritten or purchased by each of them;
•
the public offering price of the securities and the proceeds to us and any discounts, commissions or concessions allowed or reallowed or paid to dealers; and
•
any public offering price and any discounts or concessions allowed or reallowed or paid to dealers may be changed from time to time.
If underwriters are used in the sale of any securities on a firm commitment basis, the securities will be acquired by the underwriters for their own account and may be resold from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices determined at the time of sale. The securities may be either offered to the public through underwriting syndicates represented by managing underwriters, or directly by underwriters. Generally, the underwriters’ obligations to purchase the securities will be subject to certain conditions precedent. The underwriters will be obligated to purchase all of the securities if they purchase any of the securities.
To the extent that we make sales to or through one or more underwriters or agents in at-the-market offerings, we will do so pursuant to the terms of a distribution agreement between us and the underwriters or agents. If we engage in at-the-market sales pursuant to a distribution agreement, we will issue and sell shares of our common stock to or through one or more underwriters or agents, which may act on an agency basis or on a principal basis. During the term of any such agreement, we may sell shares on a daily basis in exchange transactions or otherwise as we agree with the underwriters or agents. The distribution agreement will provide that any shares of our common stock sold will be sold at prices related to the then prevailing market prices for our common stock. Therefore, exact figures regarding proceeds that will be raised or commissions to be paid cannot be determined at this time and will be described in a prospectus supplement. Pursuant to the terms of the distribution agreement, we also may agree to sell, and the relevant underwriters or agents may agree to solicit offers to purchase, blocks of our common stock or other securities. The terms of each such distribution agreement will be set forth in more detail in a prospectus supplement to this prospectus. If any underwriter or agent acts as principal, or broker dealer acts as underwriter, it may engage in certain transactions that stabilize, maintain or otherwise affect the price of our securities. We will describe any such activities in the prospectus supplement relating to the transaction.
We may sell the securities through agents from time to time. The prospectus supplement will name any agent involved in the offer or sale of our securities and any commissions we pay to them. Generally, any agent will be acting on a best efforts basis for the period of its appointment.
We may authorize underwriters, dealers or agents to solicit offers by certain purchasers to purchase our securities at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. The contracts will be subject only to those conditions set forth in the prospectus supplement, and the prospectus supplement will set forth any commissions or discounts we pay for solicitation of these contracts.
Agents and underwriters may be entitled to indemnification by us against certain civil liabilities, including liabilities under the Securities Act, or to contribution with respect to payments that the agents or underwriters may be required to make in respect thereof. Agents and underwriters may be customers of, engage in transactions with, or perform services for us in the ordinary course of business.
We may enter into derivative transactions with third parties, or sell securities not covered by this prospectus to third parties in privately negotiated transactions. If the applicable prospectus supplement indicates, in connection with those derivatives, the third parties may sell securities covered by this prospectus and the applicable prospectus supplement, including in short sale transactions. If so, the third party may use securities pledged by us or borrowed from us or others to settle those sales or to close out any related open borrowings of stock, and may use securities received from us in settlement of those derivatives to close out any related open borrowings of securities. The third party in such sale transactions will be an underwriter and will be identified in the applicable prospectus supplement (or a post-effective amendment).
LEGAL OPINION
The validity of the securities offered hereby will be passed upon for us by Luse Gorman, PC, Washington, D.C.
EXPERTS
The consolidated financial statements of Orange County Bancorp, Inc. incorporated in this registration statement by reference to Orange County Bancorp, Inc.’s Annual Report on Form 10-K for the year ended December 31, 2023 have been so incorporated in reliance on the report of Crowe LLP, independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is an itemized statement of the estimated fees and expenses in connection with the issuance and distribution of the securities registered hereby:
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Securities and Exchange Commission registration fee
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$ |
14,760 |
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|
| |
Listing fees
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|
|
|
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*
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|
|
| |
Accounting fees and expenses
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*
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|
| |
Legal fees and expenses
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*
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| |
Blue Sky expenses
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*
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|
|
| |
Printing
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|
|
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*
|
|
|
| |
Trustee’s expenses
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*
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|
|
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Transfer agent fees and expenses
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*
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|
|
| |
Miscellaneous expenses
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*
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Total
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|
$ |
*
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|
*
Estimated expenses are not presently known.
Item 15. Indemnification of Directors and Officers.
Article X of the Certificate of Incorporation and Article VI of the Bylaws of Orange County Bancorp, Inc. (the “Corporation”) set forth circumstances under which directors, officers, employees and agents of the Corporation may be insured or indemnified against liability which they incur in their capacities as such:
ARTICLE X. Limitation on Liability.
A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except for liability: (i) for any breach of the director’s duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the Delaware General Corporation Law; or (iv) for any transaction from which the director derived an improper personal benefit. If the Delaware General Corporation Law is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Delaware General Corporation Law, as so amended.
Any repeal or modification of the foregoing paragraph by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.
ARTICLE VI. Indemnification
Section 1. Actions, Suits or Proceedings Other Than Those by or in the Right of the Corporation. Subject to Section 3 of this Article VI, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was or has agreed to become a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, against expenses (including attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed
to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.
Section 2. Actions, Suits or Proceedings by or in the Right of the Corporation. Subject to Section 3 of this Article VI, the Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection with the defense or settlement of such action or suit if he acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation; except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.
Section 3. Authorization of Indemnification. Any indemnification under this Article VI (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the present or former director or officer is proper in the circumstances because he or she has met the applicable standard of conduct set forth in Section 1 or Section 2 of this Article VI, as the case may be. Such determination shall be made (i) by the Board by a majority vote of directors who were not parties to such action, suit or proceeding, even though less than a quorum, (ii) by a committee of such directors designated by majority vote of such directors, even though less than a quorum; (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (iv) by the stockholders. To the extent, however, that a director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding described above, or in defense of any claim, issue or matter therein, he or she shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him or her in connection therewith, without the necessity of authorization in the specific case.
Section 4. Indemnification by a Court. Notwithstanding any contrary determination in the specific case under Section 3 of this Article VI, and notwithstanding the absence of any determination thereunder, any director or officer may apply to any court of competent jurisdiction in the State of Delaware for indemnification to the extent otherwise permissible under Sections 1 and 2 of this Article VI. The basis of such indemnification by a court shall be a determination by such court that indemnification of the director or officer is proper in the circumstances because he or she has met the applicable standards of conduct set forth in Sections 1 or 2 of this Article VI, as the case may be. Neither a contrary determination in the specific case under Section 3 of this Article VI nor the absence of any determination thereunder shall be a defense to such application or create a presumption that the director or officer seeking indemnification has not met any applicable standard of conduct. Notice of any application for indemnification pursuant to this Section 4 shall be given to the Corporation promptly upon the filing of such application. If successful, in whole or in part, the director or officer seeking indemnification shall also be entitled to be paid the expense of prosecuting such application.
Section 5. Expenses Payable in Advance. Expenses incurred by a director or officer in defending or investigating a threatened or pending action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he or she is not entitled to be indemnified by the Corporation as authorized in this Article VI.
Section 6. Nonexclusivity of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by or granted pursuant to this Article VI shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any Bylaws, agreement, contract, vote of stockholders or disinterested directors or pursuant to the direction (however embodied) of any court of competent jurisdiction or otherwise, both as to action in his or her official capacity and as to action in another capacity while holding such office, it being the policy of the Corporation that indemnification of the persons specified in Sections I and 2 of this Article VI shall be made to the fullest extent permitted by law. The provisions of this Article VI shall not be deemed to preclude the indemnification of any person who is not specified in Sections I or 2 of this Article VI but whom the Corporation has the power or obligation to indemnify under the provisions of the Delaware General Corporation Law or otherwise.
Section 7. Insurance. The Corporation may purchase and maintain insurance on behalf of any person who is or was a director or officer of the Corporation, or is or was a director or officer of the Corporation serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise against any liability asserted against him or her and incurred by him or her in any such capacity, or arising out of his or her status as such, whether or not the Corporation would have the power or the obligation to indemnify him or her against such liability under the provisions of this Article VI.
Section 8. Certain Definitions. For purposes of this Article VI, references to “the Corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors or officers, so that any person who is or was a director or officer of such constituent corporation, or is or was a director or officer of such constituent corporation serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust, employee benefit plan or other enterprise, shall stand in the same position under the provisions of this Article VI with respect to the resulting or surviving corporation as he or she would have with respect to such constituent corporation if its separate existence had continued. For purposes of this Article VI, references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; and references to “serving at the request of the Corporation” shall include any service as a director, officer, employee or agent of the Corporation which imposes duties on, or involves services by, such director or officer with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner he reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the Corporation” as referred to in this Article VI.
Section 9. Survival of Indemnification and Advancement of Expenses. The indemnification and advancement of expenses provided by, or granted pursuant to, this Article VI shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director or officer and shall inure to the benefit of the heirs, executors and administrators of such a person.
Section 10. Limitation on Indemnification. Notwithstanding anything contained in this Article VI to the contrary, except for proceedings to enforce rights to indemnification (which shall be governed by Section 4 hereof), the Corporation shall not be obligated to indemnify any director or officer in connection with a proceeding (or part thereof) initiated by such person unless such proceeding (or part thereof) was authorized or consented to by the Board of the Corporation.
Section 11. Indemnification of Employees and Agents. The Corporation may, to the extent authorized from time to time by the Board, provide rights to indemnification and to the advancement of expenses to employees and agents of the Corporation similar to those conferred in this Article VI to directors and officers of the Corporation.
Item 16. Exhibits.
The following is a list of exhibits filed as part of the Registration Statement:
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1.1
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Form of Underwriting Agreement for any Offering of Securities*
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3.1
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Certificate of Incorporation of Orange County Bancorp, Inc. (incorporated by reference to Exhibit 3.1 to the Registration Statement on Form S-1 of Orange County Bancorp, Inc. (File No. 333-257781), initially filed with the Securities and Exchange Commission on July 9, 2021)
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3.2
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Bylaws of Orange County Bancorp, Inc. (incorporated by reference to Exhibit 3.1 to the Current Report on Form 8-K of Orange County Bancorp, Inc. (File No. 001-40711) filed with the Securities and Exchange Commission on June 21, 2024)
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4.1
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Form of Common Stock Certificate of Orange County Bancorp, Inc. (incorporated by reference to Exhibit 4.1 to the Registration Statement on Form S-1 of Orange County Bancorp, Inc. (File No. 333-257781), initially filed with the Securities and Exchange Commission on July 9, 2021)
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4.2
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Form of 4.25% Fixed-to-Floating Rate Subordinated Note due 2030 of Orange County Bancorp, Inc. (incorporated by reference to Exhibit 4.2 to the Registration Statement on Form S-1 of Orange County Bancorp, Inc. (File No. 333-257781), initially filed with the Securities and Exchange Commission on July 9, 2021)
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4.4
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4.5
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Form of Note for Senior Debt Securities*
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4.6
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4.7
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Form of Note for Subordinated Debt Securities*
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4.10
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Form of Warrant Agreement (including Form of Warrant Certificate)*
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4.11
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Form of Purchase Contract Agreement*
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4.12
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Form of Unit Agreement*
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4.13
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Form of Subscription Rights Agreement (including form of rights certificate)*
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5.1
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8.1
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Opinion of Counsel as to Certain Federal Income Tax Matters*
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23.1
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23.2
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24.1
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25.1
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Form T-1 Statement of Eligibility of the trustee under the Indenture for Senior Debt Securities**
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25.2
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Form T-1 Statement of Eligibility of the trustee under the Indenture for Subordinated Debt Securities**
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107
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*
To be filed by amendment or incorporated by reference to a Current Report on Form 8-K.
**
To be filed pursuant to Section 305(b)(2) of the Trust Indenture Act of 1939, as amended.
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i)
To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
(ii)
To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement;
Provided, however, that paragraphs (i), (ii) and (iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for purposes of determining liability under the Securities Act of 1933 to any purchaser:
(i)
Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which that prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i)
Any preliminary prospectus or prospectus of the registrant relating to the offering required to be filed pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by or on behalf of the registrant or used or referred to by the undersigned registrant;
(iii)
The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by the registrant to the purchaser.
The undersigned registrant hereby undertakes that, for the purpose of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the Commission under section 305(b)(2) of the Act.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this Registration Statement on Form S-3 to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Middletown, State of New York, on July 12, 2024.
ORANGE COUNTY BANCORP, INC.
By:
/s/ Michael J. Gilfeather
Michael J. Gilfeather
President and Chief Executive Officer
(Duly Authorized Representative)
POWER OF ATTORNEY
We, the undersigned directors and officers of Orange County Bancorp, Inc. (the “Company”), hereby severally constitute and appoint Michael J. Gilfeather as our true and lawful attorney and agent, to do any and all things in our names in the capacities indicated below which said Michael J. Gilfeather may deem necessary or advisable to enable the Company to comply with the Securities Act of 1933, and any rules, regulations and requirements of the Securities and Exchange Commission, in connection with this registration statement on Form S-3 relating to the offering of the Company’s securities, including specifically, but not limited to, power and authority to sign for us in our names in the capacities indicated below the registration statement and any and all amendments (including post-effective amendments) thereto; and we hereby approve, ratify and confirm all that said Michael J. Gilfeather shall do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement on Form S-3 has been signed by the following persons in the capacities and on the date indicated.
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Signatures
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Title
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Date
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/s/ Michael J. Gilfeather
Michael J. Gilfeather
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President, Chief Executive Officer and Director (Principal Executive Officer)
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July 12, 2024
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/s/ Michael Lesler
Michael Lesler
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Executive Vice President and Chief Financial Officer (Principal Financial and Accounting Officer)
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July 12, 2024
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/s/ Jonathan F. Rouis
Jonathan F. Rouis
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Chairman of the Board
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July 12, 2024
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/s/ Gregory F. Holcombe
Gregory F. Holcombe
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Director
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July 12, 2024
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/s/ Kevin J. Keane
Kevin J. Keane
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Director
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July 12, 2024
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/s/ Marianna R. Kennedy
Marianna R. Kennedy
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Director
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July 12, 2024
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/s/ Olga Luz Tirado
Olga Luz Tirado
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Director
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July 12, 2024
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Signatures
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Title
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Date
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/s/ William D. Morrison
William D. Morrison
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Director
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July 12, 2024
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/s/ Richard B. Rowley
Richard B. Rowley
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Director
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July 12, 2024
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/s/ Gustave J. Scacco
Gustave J. Scacco
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Director
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July 12, 2024
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Exhibit 4.4
ORANGE COUNTY BANCORP, INC.,
AS ISSUER
AND
[ ],
AS TRUSTEE
SENIOR INDENTURE
DATED AS OF [ ], 20[ ]
SENIOR 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 [ ], 20[ ].
| SECTION OF TRUST INDENTURE ACT |
|
SECTION OF INDENTURE |
| 310(a)(1) and (2) |
|
7.09 |
| 310(a)(3) and (4) |
|
Not applicable |
| 310(a)(5) |
|
7.09 |
| 310(b) |
|
7.08 and 7.10 |
| 311(a) and (b) |
|
7.13 |
| 312(a) |
|
5.01 and 5.02(a) |
| 312(b) and (c) |
|
5.02(b) and (c) |
| 313(a) |
|
5.04(a) |
| 313(b)(1) |
|
Not applicable |
| 313(b)(2) |
|
5.04(b) |
| 313(c) |
|
5.04(c) |
| 313(d) |
|
5.04(d) |
| 314(a) |
|
5.03 |
| 314(b) |
|
Not applicable |
| 314(c)(1) and (2) |
|
14.04 |
| 314(c)(3) |
|
Not applicable |
| 314(d) |
|
Not applicable |
| 314(e) |
|
15.05 |
| 314(f) |
|
Not applicable |
| 315(a), (c) and (d) |
|
7.01 |
| 315(b) |
|
7.14 |
| 315(e) |
|
6.14 |
| 316(a)(1) |
|
6.12 |
| 316(a)(2) |
|
Omitted |
| 316(a) last sentence |
|
8.04 |
| 316(b) |
|
6.08 |
| 316(c) |
|
8.06 |
| 317(a) |
|
6.03 and 6.04 |
| 317(b) |
|
4.03(a) |
| 318(a) |
|
15.07 |
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(s) |
| ARTICLE 1 DEFINITIONS |
1 |
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| SECTION 1.01. |
Definitions |
1 |
| |
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| ARTICLE 2 ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
| |
|
|
| SECTION 2.01. |
Amount
Unlimited; Issuable in Series |
5 |
| |
|
|
| SECTION 2.02. |
Form of
Trustee’s Certificate of Authentication |
5 |
| |
|
|
| SECTION 2.03. |
Form of
Securities Generally; Establishment of Terms of Series |
6 |
| |
|
|
| SECTION 2.04. |
Securities
in Global Form |
8 |
| |
|
|
| SECTION 2.05. |
Denominations;
Record Date; Payment of Interest |
9 |
| |
|
|
| SECTION 2.06. |
Execution,
Authentication, Delivery and Dating of Securities |
9 |
| |
|
|
| SECTION 2.07. |
Exchange
and Registration of Transfer of Securities |
11 |
| |
|
|
| SECTION 2.08. |
Temporary
Securities |
12 |
| |
|
|
| SECTION 2.09. |
Mutilated,
Destroyed, Lost or Stolen Securities |
12 |
| |
|
|
| SECTION 2.10. |
Cancellation |
13 |
| |
|
|
| SECTION 2.11. |
Book-Entry
Only System |
13 |
| |
|
| ARTICLE 3 REDEMPTION OF SECURITIES |
14 |
| |
|
|
| SECTION 3.01. |
Redemption
of Securities, Applicability of Section |
14 |
| |
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|
| SECTION 3.02. |
Notice
of Redemption, Selection of Securities |
14 |
| |
|
|
| SECTION 3.03. |
Payment
of Securities Called for Redemption |
15 |
| |
|
|
| SECTION 3.04. |
Redemption
Suspended During Event of Default |
15 |
| |
|
| ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY |
15 |
| |
|
|
| SECTION 4.01. |
Payment of Principal, Premium and Interest |
15 |
| |
|
|
| SECTION 4.02. |
Offices
for Notices and Payments |
16 |
| |
|
|
| SECTION 4.03. |
Provisions
as to Paying Agent |
16 |
| |
|
|
| SECTION 4.04. |
Statement
as to Compliance |
17 |
| |
|
|
| SECTION 4.05. |
Corporate
Existence |
17 |
| |
|
|
| SECTION 4.06. |
Waiver
of Covenants |
17 |
| |
|
| ARTICLE 5 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
17 |
| |
|
|
| SECTION 5.01. |
Securityholder
Lists |
17 |
| |
|
|
| SECTION 5.02. |
Preservation
and Disclosure of Lists |
18 |
| |
|
|
| SECTION 5.03. |
Reports
by the Company |
18 |
| |
|
|
| SECTION 5.04. |
Reports
by the Trustee |
18 |
| |
|
| ARTICLE 6 REMEDIES |
19 |
| |
|
|
| SECTION 6.01. |
Events
of Default; Acceleration of Maturity |
19 |
| |
|
|
| SECTION 6.02. |
Rescission and Annulment |
20 |
| |
|
|
| SECTION 6.03. |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
20 |
| |
|
|
| SECTION 6.04. |
Trustee May File Proofs of Claim |
21 |
| |
|
|
| SECTION 6.05. |
Trustee
May Enforce Claims Without Possession of Securities |
21 |
| |
|
|
| SECTION 6.06. |
Application
of Money Collected |
21 |
| |
|
|
| SECTION 6.07. |
Limitation
on Suits |
22 |
| |
|
|
| SECTION 6.08. |
Unconditional
Right of Securityholders to Receive Principal and Interest |
22 |
| |
|
|
| SECTION 6.09. |
Restoration
of Rights and Remedies |
22 |
| |
|
|
| SECTION 6.10. |
Rights
and Remedies Cumulative |
23 |
| |
|
|
| SECTION 6.11. |
Delay
or Omission Not Waiver |
23 |
| |
|
|
| SECTION 6.12. |
Control
by Securityholders |
23 |
| |
|
|
| SECTION 6.13. |
Waiver
of Past Defaults |
23 |
| |
|
|
| SECTION 6.14. |
Undertaking
for Costs |
24 |
| |
|
|
| SECTION 6.15. |
Waiver
of Stay or Extension Laws |
24 |
| |
|
| ARTICLE 7 CONCERNING THE TRUSTEE |
24 |
| |
|
|
| SECTION 7.01. |
Duties
and Responsibilities of Trustee |
24 |
| |
|
|
| SECTION 7.02. |
Reliance on Documents, Opinions, etc. |
25 |
| |
|
|
| SECTION 7.03. |
No Responsibility for Recitals, etc. |
26 |
| |
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|
| SECTION 7.04. |
Ownership
of Securities |
26 |
| |
|
|
| SECTION 7.05. |
Moneys
to be Held in Trust |
26 |
| |
|
|
| SECTION 7.06. |
Compensation
and Expenses of Trustee |
27 |
| |
|
|
| SECTION 7.07. |
Officers’
Certificate or Opinion of Counsel as Evidence |
27 |
| |
|
|
| SECTION 7.08. |
Disqualifications;
Conflicting Interest of Trustee |
27 |
| |
|
|
| SECTION 7.09. |
Eligibility
of Trustee |
27 |
| |
|
|
| SECTION 7.10. |
Resignation
or Removal of Trustee |
28 |
| |
|
|
| SECTION 7.11. |
Acceptance by Successor Trustee |
28 |
| |
|
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| SECTION 7.12. |
Successor by Merger, etc. |
29 |
| |
|
|
| SECTION 7.13. |
Limitations
on Rights of Trustee as Creditor |
29 |
| |
|
|
| SECTION 7.14. |
Notice
of Default |
29 |
| |
|
|
| SECTION 7.15. |
Appointment
of Authenticating Agent |
30 |
| |
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
31 |
| |
|
|
| SECTION 8.01. |
Action
by Securityholders |
31 |
| |
|
|
| SECTION 8.02. |
Proof
of Execution by Securityholders |
31 |
| |
|
|
| SECTION 8.03. |
Who
Are Deemed Absolute Owners |
32 |
| |
|
|
| SECTION 8.04. |
Company-Owned
Securities Disregarded |
32 |
| |
|
|
| SECTION 8.05. |
Revocation
of Consents; Future Securityholders Bound |
32 |
| |
|
|
| SECTION 8.06. |
Record
Date |
32 |
| |
|
| ARTICLE 9 SECURITYHOLDERS’ MEETINGS |
33 |
| |
|
|
| SECTION 9.01. |
Purposes
of Meeting |
33 |
| |
|
|
| SECTION 9.02. |
Call
of Meetings by Trustee |
33 |
| |
|
|
| SECTION 9.03. |
Call
of Meetings by Company or Securityholders |
33 |
| |
|
|
| SECTION 9.04. |
Qualifications
for Voting |
33 |
| |
|
|
| SECTION 9.05. |
Regulations |
34 |
| |
|
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| SECTION 9.06. |
Voting |
34 |
| |
|
| ARTICLE 10 SUPPLEMENTAL INDENTURES |
34 |
| |
|
|
| SECTION 10.01. |
Supplemental
Indentures without Consent of Securityholders |
34 |
| |
|
|
| SECTION 10.02. |
Supplemental
Indentures with Consent of Holders |
36 |
| |
|
|
| SECTION 10.03. |
Compliance
with Trust Indenture Act; Effect of Supplemental Indentures |
37 |
| |
|
|
| SECTION 10.04. |
Notation
on Securities |
37 |
| |
|
| ARTICLE 11 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
37 |
| |
|
|
| SECTION 11.01. |
Company
May Consolidate, etc., on Certain Terms |
37 |
| |
|
|
| SECTION 11.02. |
Successor
Corporation Substituted |
37 |
| |
|
|
| SECTION 11.03. |
Opinion
of Counsel and Officers’ Certificate to be Given Trustee |
38 |
| |
|
| ARTICLE 12 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
38 |
| |
|
|
| SECTION 12.01. |
Discharge
of Indenture |
38 |
| |
|
|
| SECTION 12.02. |
Deposited
Moneys to be Held in Trust by Trustee |
38 |
| |
|
|
| SECTION 12.03. |
Paying
Agent to Repay Moneys Held |
39 |
| |
|
|
| SECTION 12.04. |
Return
of Unclaimed Moneys |
39 |
| |
|
| ARTICLE 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
39 |
| |
|
|
| SECTION 13.01. |
Indenture
and Securities Solely Corporate Obligations |
39 |
| |
|
| ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE |
39 |
| |
|
|
| SECTION 14.01. |
Applicability
of Article |
39 |
| |
|
|
| SECTION 14.02. |
Defeasance
and Discharge |
39 |
| |
|
|
| SECTION 14.03. |
Covenant
Defeasance |
40 |
| |
|
|
| SECTION 14.04. |
Conditions
to Defeasance or Covenant Defeasance |
40 |
| |
|
|
| SECTION 14.05. |
Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
41 |
| |
|
| ARTICLE 15 MISCELLANEOUS PROVISIONS |
42 |
| |
|
|
| SECTION 15.01. |
Benefits
of Indenture Restricted to Parties and Securityholders |
42 |
| |
|
|
| SECTION 15.02. |
Provisions
Binding on Company’s Successors |
42 |
| |
|
|
| SECTION 15.03. |
Addresses
for Notices, etc., to Company and Trustee |
42 |
| |
|
|
| SECTION 15.04. |
Notice
to Holders of Securities; Waiver |
42 |
| |
|
|
| SECTION 15.05. |
Evidence
of Compliance with Conditions Precedent |
43 |
| |
|
|
| SECTION 15.06. |
Legal
Holidays |
43 |
| |
|
|
| SECTION 15.07. |
Trust
Indenture Act to Control |
43 |
| |
|
|
| SECTION 15.08. |
Execution
in Counterparts |
44 |
| |
|
|
| SECTION 15.09. |
Governing
Law; Waiver of Jury Trial |
44 |
| |
|
|
| SECTION 15.10. |
Severability |
44 |
| |
|
|
| SECTION 15.11. |
Interpretations |
44 |
| |
|
|
| SECTION 15.12. |
U.S.A.
Patriot Act |
45 |
| |
|
| ARTICLE 16 RANKING OF SECURITIES |
45 |
| |
|
|
| SECTION 16.01. |
Ranking |
45 |
THIS INDENTURE, dated as of [ ], 20[ ] between
Orange County Bancorp, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the “Company”),
and [ ], a [ ], 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 and the purchase and acceptance of the
Securities by the holders thereof, it is mutually covenanted and agreed, 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 indenture
supplemental hereto 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 and in the Securities Act
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 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 Officer” shall have the
meaning set forth in Section 3.02 hereof.
“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), any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which
banking institutions or trust companies in the City of New York, New York, or any Place of Payment are authorized or obligated by law,
regulation or executive order to remain 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, President,
Chief Financial Officer, Vice President, General Counsel, Secretary or Assistant Secretary or Treasurer or Assistant Treasurer and delivered
to the Trustee.
“Corporate Trust Office” means the
office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at
the date hereof is located at [ ], Attention: Orange County Bancorp, Inc. Administrator, or such other address as the Trustee may
designate from time to time by notice to the Holders and 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 holders and the Company).
“covenant defeasance” shall have the
meaning set forth in Section 14.03.
“Default” or “default”
shall have the meaning specified in Article 6.
“defeasance” shall have the meaning
set forth in Section 14.02.
“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 Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency registered under the Exchange
Act, until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each person who is then a Depositary hereunder, and if at any time there is more than one such person, “Depositary”
as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“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 Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.03 evidencing
all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of
such Depositary or nominee.
“holder,” “holder of Securities,”
“securityholder” or other similar term shall mean 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.
“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 in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations
with respect thereto), (iv) all obligations to pay the deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) 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) and (vi) 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 capitalized leases under United States generally accepted accounting principles.
“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 indentures supplemental
hereto 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 Orange
County Bank & Trust, 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.
“Officers’ Certificate” shall
mean a certificate signed by the Chief Executive Officer, President or other principal executive officer and by the Chief Financial Officer
or other principal financial officer or principal accounting officer, Assistant Secretary, Treasurer or Controller 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 7.08, 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; 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 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).
“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 its 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, and in each case, who has direct responsibility for the administration of this Indenture.
“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.
“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01 and 2.03.
“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, and if at any time there is more than one such person, “Trustee”
as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“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.
“USA PATRIOT Act” shall have the meaning
set forth in Section 15.12 hereof.
“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 or Senior Vice President.
“Voting Stock” means outstanding shares
of Capital Stock having voting power for the election of directors, whether at all times or only so long as no senior class of stock has
such voting power because of default in dividends or other default.
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 an indenture supplemental hereto or Officers’ Certificate, as set forth in Section 2.03,
may be executed by the Company and delivered to the Trustee for authentication, 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 an indenture supplemental hereto or Officers’ Certificate, 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 and 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. Securities may differ between Series in respect of any
matters; provided that all Series of Securities shall be equally and ratably entitled to the benefits of this Indenture.
SECTION 2.02. Form of Trustee’s Certificate of Authentication.
The form of the Trustee’s certificate of
authentication to be borne by the Securities shall be in substantially the following form:
Form of Trustee’s Certificate of Authentication
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
| Dated: |
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[ ], as Trustee |
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By: |
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Authorized Signatory |
SECTION 2.03. Form of Securities Generally; Establishment
of Terms of Series.
(a) The
Registered Securities, if any, of each series, 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 Officers’ Certificate (to which shall
be attached true and correct copies of the relevant Board Resolution(s)) detailing such establishment) or established in an indenture
supplemental hereto.
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.
(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 Officers’ Certificate (to which shall be attached true and correct copies of the relevant Board Resolution(s)) detailing such
establishment) or established in an indenture supplemental hereto, including the following:
(1) the
designation of the particular series (which shall distinguish such series from all other series);
(2) the
aggregate principal amount of such series which 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);
(3) whether
Securities of the series are to be issuable as Registered Securities, whether any Securities of the series are to be issuable initially
in temporary global form and, if so, the name of the Depositary with respect to any such temporary global Security, and whether any Securities
of the series are to be issuable in permanent global form 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 Depositary with
respect to any such permanent global Security;
(4) the
date as of which 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;
(5) 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 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;
(6) the
date or dates on which the principal of the Securities of such series is payable;
(7) 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;
(8) 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;
(9) 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;
(10) 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;
(11) 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;
(12) 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;
(13) if
the principal of (and premium, if any, on) or any interest on the Securities of the series are 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;
(14) 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;
(15) whether
the Securities will be issued in book-entry only form;
(16) any
interest rate calculation agents, exchange rate calculation agents or other agents with respect to Securities of such series;
(17) if
either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(18) 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;
(19) 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;
(20) 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;
(21) the
terms and conditions, if any, pursuant to which the Securities of the series are secured;
(22) the
subordination terms of the Securities of the series; and
(23) any
other terms of the Securities or provisions relating to the payment of principal, 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 or any third party.
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 Officers’ Certificate referred to above or as set forth in an indenture supplemental hereto, 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 Officers’ 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, Officers’ 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, Officers’
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 (10) 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 in minimum denominations of $1,000.
(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 Dollars; 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 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, its President or one of its Vice Presidents. Such signatures may be the manual, electronic or
facsimile signatures of such then current officers.
Any Security 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 bearing the manual, electronic or facsimile signatures
of individuals who were, at the actual date of the execution of such Security, 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, 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 Officers’ Certificate as to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and give instructions under this Section and, as long as Securities are Outstanding under this
Indenture, such incumbency certificate shall be amended and replaced whenever an officer is to be added or deleted from the listing. 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, (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.
Prior to the issuance of a Security of any new
series, 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 Officers’ Certificate or indenture supplemental hereto establishing the terms and the form of the Securities
of that series pursuant to Section 2.01 and Section 2.03;
(b) An
Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the issuance, authentication
and delivery of Securities in such form have been complied with;
(c) An
Opinion of Counsel stating that the form and terms of such Securities have been established in conformity with the provisions of this
Indenture; 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 rely, as to the authorization by the Company of any of such Securities, the form and terms thereof
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 Officers’ Certificate or indenture supplemental hereto.
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 Officers’ Certificate or indenture supplemental hereto delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security, a certificate of authentication substantially
in the form provided for 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.
(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 their 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, or (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.
(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 Depositary (which instructions shall be in writing), such permanent global Security shall
be surrendered from time to time by the Depositary or such other depositary 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 shall be in the form of Registered Securities; 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. Promptly following any such exchange in part, such permanent
global Security should be returned by the Trustee or the Security Registrar to the Depositary or such other 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.
(e) Notwithstanding
anything contained herein to the contrary, neither the Trustee nor the Security Registrar shall be responsible for ascertaining whether
any transfer complies with the restrictions set forth in this Indenture, the registration provisions of or exemptions from the Securities
Act or applicable state securities laws.
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, 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.
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, 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.
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 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 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.
If any mutilated Security 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.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) 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 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, a new Security
of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
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 issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security,
if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that
series 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.
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, shall, if surrendered to the
Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All Registered Securities so delivered shall be promptly
cancelled by the Trustee, upon written request of the Company. 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 held by the Trustee shall be disposed in accordance with its then customary procedures and, upon
written request of the Company, the Trustee shall deliver to the Company a certificate of such disposal. The acquisition of any Securities
by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such Securities
are surrendered to the Trustee for cancellation.
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 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 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 Depositary, or such other depositary, as the case may be.
Members of, or participants in, the Depositary
shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as
its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner of the Global Security for all purposes whatsoever.
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 written 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 Board
Resolutions, as described in Section 2.03, or (b) as determined by the Chief Executive Officer, the Chief Financial Officer,
the President, the Treasurer, any Executive Vice President, the Secretary and each officer of the Company designated by any of the foregoing
officers (each, an “Authorized Officer”) and evidenced by the preparation of an offering document or an Officers’ Certificate
specifying the period of notice of such redemption. If the Board Resolutions or an Authorized Officer do not specify a longer period of
notice of such redemption, the Company or, at the written request of the Company, the Trustee, shall give notice of such redemption, in
the manner and to the extent set forth in Section 15.04, at least ten 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 in writing in an Officers’ Certificate delivered to the Trustee at least ten 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 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. 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.
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, by lot or in such other manner is it shall deem appropriate and fair, 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.
On presentation and surrender of such Securities subject to redemption at the Place of Payment and in the manner specified in such notice,
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 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.
Any Security 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 has received written notice thereof, 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 and this Indenture.
SECTION 4.02. Offices for Notices and Payments.
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.
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,
and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.
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 principal
Corporate Trust Office of the Trustee as the office of the Company 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, however, that the Trustee shall not be deemed an agent of the Company for service of legal
process.
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 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), an Officers’
Certificate signed by the Chief Executive Officer, President or other principal executive officer and by the Chief Financial Officer or
other principal financial officer or principal accounting officer, Assistant Secretary, Treasurer or Controller 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 their supervision;
and
(b) to
the best of their 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 them and the nature
and status thereof.
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 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 (1) semiannually, within 15 days before each record date when any Securities of a series
are Outstanding, a list, in such form 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 such Registered Securities as of such date, and (2) at such other times as the Trustee
may request in writing, within 10 days after receipt by the Company of any such request, a list, in such form 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 as of a date not more than 15 days prior to the time such information is furnished; 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.
(a) The
Company covenants so long as Securities are Outstanding, the Company shall file with the Trustee and the Commission, and transmit to holders,
copies of such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided, that with respect to any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, the Company intends to file such
information, documents or reports with the Commission in electronic form in accordance with Regulation S-T of the Commission using the
Commission’s Electronic Data Gathering, Analysis and Retrieval system. Compliance with the foregoing, or any successor electronic
system approved by the Commission, will constitute delivery by the Company of such reports to the Trustee and holders in compliance with
the Trust Indenture Act.
(b) Notwithstanding
anything to the contrary herein, the Trustee will have no duty to search for or obtain any electronic or other filings that the Company
makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the reports, information
and documents to the Trustee in accordance with this Section 5.03 will be solely for the purposes of compliance with Section 314(a) of
the Trust Indenture Act. The Trustee’s receipt of such reports, information and documents (whether or not filed in electronic form)
is for informational purposes only and the Trustee’s receipt of such will not constitute actual or constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no liability
or responsibility for the filing, content or timelines of any report hereunder aside from any report transmitted under this Indenture.
SECTION 5.04. Reports by the Trustee.
(a) Within
60 days after [ ] of each year commencing with the first [ ] following the first issuance of Securities pursuant to Section 2.01,
so long as any Securities are outstanding hereunder and if there has been any change in the following, the Trustee shall transmit by mail,
first-class postage prepaid, to the securityholders, as their names appear upon the Security Register, a brief report dated as of such
[ ] with respect to any of the events specified in Section 313(a) and Section 313(b)(2) of the Trust Indenture Act
that may have occurred since the later of the immediately preceding [ ] and the date of this Indenture.
(b) The
Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) The
Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(d) Reports
under this Section will be transmitted in the manner and to the Persons required by Section 313(c) and Section 313(d) of
the Trust Indenture Act. The Company agrees to notify the Trustee when any Securities become listed 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 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 under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an 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; 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, either the Trustee or the holders of not less than 25% in aggregate principal amount of all 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 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) to be due and payable immediately, and upon any such declaration the same shall become and shall be 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, or
(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,
then the Company will, upon demand of the Trustee, pay to it, for the
benefit of the holders of such Securities, the whole amount that shall have become due and payable on such Securities 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 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 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, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. 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 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder of a Security in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery 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 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, 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
under Section 7.06 or 14.05;
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, 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, 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 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 indemnity 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 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.
SECTION 6.08. Unconditional Right of Securityholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture,
the holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium,
if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security on the respective stated maturities expressed
in such Security (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 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 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 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 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 may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the holders of
Securities, 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 (provided, however, that the Trustee shall not have an affirmative obligation to determine whether
such action is unduly 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, waive any past
default hereunder and its consequences, except a default:
(a) in
the payment of the principal of, premium, if any, or any interest on any Security; or
(b) 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 by their 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 for
the enforcement of the payment of the principal of, premium, if any, or any interest on any Security on or after the respective stated
maturities expressed in such Security (or, in the case of redemption, on or after the redemption date, 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 bad
faith 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 be under a duty to examine the same to determine whether or not they conform on their face 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 person would exercise or use under the circumstances in the conduct of their 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 a Responsible Officer or Officers, 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 and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, judgement, 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 not only as the due execution, validity and effectiveness, but also
as to the truth and accuracy of any information contained herein. The Trustee need not investigate any fact or matter stated in the 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, in the absence of bad faith or willful misconduct on its part,
rely upon an Officers’ Certificate and/or Opinion of Counsel;
(c) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(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 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 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 will the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(i) in
no event will 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 reasonable control, including, without limitation, strikes, pandemics, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, sabotage, epidemics, riots, nuclear or natural catastrophes,
earthquakes, fires, floods, or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software
or hardware) services, labor disputes, acts of civil or military authorities and governmental actions, or the unavailability of the Federal
Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee will use reasonable efforts that
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(j) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers hereunder;
(k) the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture; and
(l) the
permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and, with respect to such
permissive rights, the Trustee shall not be answerable other than for its negligence or willful misconduct.
SECTION 7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, 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, 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 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 un-invested 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 and Expenses of Trustee.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder as agreed
in writing between the Company and the Trustee (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 will pay or 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 each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, damage, claims, suit, liability or expense, (including attorney’s
fees and expenses, and 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, whether asserted by the Company, a Holder or any
other person. 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. This indemnification shall apply to officers,
directors, employees, shareholders and agents of the Trustee.
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 provisions of this Section shall survive
the resignation or removal of the Trustee and the termination of this Indenture.
SECTION 7.07. Officers’ Certificate or Opinion of Counsel
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, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate or Opinion of Counsel delivered to the Trustee, and such certificate
or opinion, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, 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 at the expense of the Company. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with 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, or
(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, 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 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) Upon
30 days’ prior written notice, 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 an indenture supplemental hereto 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 ten 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 of which a Responsible Officer of the Trustee has received notice or is deemed to have notice in accordance
with this Section 7.14, 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 actually known to a Responsible Officer of 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 a Responsible Officer of the Trustee in good faith determine 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. The Trustee will not be required to take notice
or be deemed to have notice of any default or Event of Default, except failure by the Company to pay or cause to be made any of the payments
required to be made to the Trustee, unless a Responsible Officer shall receive written notice of such default or Event of Default from
the Company or by the holders of at least 25% in aggregate principal amount of the then Outstanding Securities delivered to the Corporate
Trust Office of the Trustee and such notice states that it is a notice of a default or Event of Default with respect to the Securities
and this Indenture, and in the absence of such notice so delivered the Trustee may conclusively assume no default or Event of Default
exists. 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.
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[ ],
as Trustee |
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By: |
[ ], as Authenticating Agent |
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By: |
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Authorized Signatory
Date: |
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,
or (b) 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 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 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 them 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
and Section 2.07, 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 their 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.
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 Depositary, or impair, as between
a 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 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 actually 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 be 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 principal
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 [ ], [ ] or 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 [ ], [ ] 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 and
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.
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 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; 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,
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
establish any series of Securities and the form or terms of securities of any series as permitted by Section 2.01 and Section 2.03,
including, without limitation, any subordination provisions and any conversion or exchange provisions applicable to Securities that are
convertible into or exchangeable for other securities or property, and any deletions from or additions or changes to this Indenture in
connection therewith (provided that any such deletions, additions and changes shall not be applicable to any other series of Securities
then Outstanding);
(d) to
add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture)
or change any of the provisions of this Indenture regarding acceleration of maturity upon an Event of Default;
(e) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance, covenant
defeasance and/or satisfaction and discharge of any series of Securities pursuant to Article 14, provided that any such action shall
not adversely affect the interests of any holder of a Security of such series or any other Security in any material respect;
(f) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities, registrable or not registrable as to principal;
(g) to
make provisions with respect to conversion or exchange rights of holders of Securities of any series;
(h) in
the case of any series of Securities which are convertible into or exchangeable for commodities or for the securities of the Company to
safeguard or provide for the conversion or exchange rights, as the case may be, of such Securities in the event of any reclassification
or change of outstanding securities or any merger, consolidation, statutory share exchange or combination of the Company with or into
another Person or any sale, lease, assignment, transfer, disposition or other conveyance of all or substantially all of the properties
and assets of the Company to any other Person or other similar transactions, if expressly required by the terms of such series of Securities
established pursuant to Section 2.03;
(i) to
add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of Securities of any series;
(j) 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;
(k) 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;
(l) to
conform the Indenture or the Securities to the description thereof in the related prospectus, offering memorandum or disclosure document
(as provided in an Officers’ Certificate delivered to the Trustee);
(m) 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;
(n) to
add guarantees with respect to, or to secure, any series of Security;
(o) 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; and
(p) to
make any change to the Securities of any series or to make any other provisions in regard to matters or questions arising under this Indenture
that do not adversely affect the legal rights under this Indenture of any holder of Securities of any series issued under this Indenture,
including provisions necessary or desirable to provide for or facilitate the administration of the trusts hereunder.
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 under this Indenture; provided, that no such supplemental indenture shall (a) 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, (b) 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, (c) modify the subordination provisions in a manner adverse to the holders of such Securities,
or (d) 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 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 Officers’ Certificate and Opinion
of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of this Article 10 and that all
conditions precedent thereto have been satisfied.
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 Company 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 Company 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 (a) 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 in form satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation, and (b) 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 phraseology 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 Officers’ Certificate
to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officers’ 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 (other than (i) Securities
that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09, and (ii) Securities
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 not theretofore delivered to the Trustee for cancellation (i) shall have become due and payable, or
(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 (b)(i), (b)(ii) or
(b)(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 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 proper instruments 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 and properly 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 Officers’
Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of clause (e) of
Section 4.03, 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.
Subject to applicable law, 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 upon written request from the Company,
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 because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer, director or employee, 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 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 proper instruments
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, or (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(a) and Section 6.01(b) 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 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company 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 Officers’ 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 request, demand, authorization, direction,
notice, consent, waiver or other document provided or permitted by this Indenture is duly given if in writing and delivered in person
or delivered by first-class postage prepaid mail, facsimile, email or overnight air courier guaranteeing next day delivery, to the other’s
address:
(1) If
to the Trustee, addressed to the Trustee at the principal Corporate Trust Office of the Trustee, [ ], Attention: Orange County Bancorp, Inc.
Administrator, Telephone: [ ].
(2) If
to the Company by the Trustee or by the holders of Securities, addressed to it at [ ], Attention: [ ], Email: [ ].
The Company or the Trustee by written notice to
the other may designate additional or different addresses for subsequent notices or communications.
All notices and communications will be deemed to
have been duly given: five Business Days after being deposited in the mail, postage prepaid, if delivered by mail; on the first Business
Day after being sent, if sent by facsimile and the sender receives confirmation of successful transmission; upon confirmation of transmittal
(but excluding any automatic reply to such email), if sent by email; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
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, 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.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holders for every
purpose hereunder. 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.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given when delivered to the Depositary for such
Security (or its designee) pursuant to the customary procedures of such Depositary.
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.
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 Officers’
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 Officers’ 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 (a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) 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; (c) a statement that, in the opinion of such person, they have made such examination or
investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (d) 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 City of New York, New York or in such other Place of Payment as the Company may designate pursuant to Section 4.02, or a day on
which banking institutions in City of New York, New York or in such other Place of Payment are authorized or obligated by law, regulation
or executive order to remain closed, 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 electronic format (e.g., “.pdf” or
“.tif”) 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 electronic format
(e.g., “.pdf” or “.tif”) will be deemed to be their original signatures for all purposes. Unless otherwise
provided herein or in any other Securities, the words “execute”, “execution”, “signed”, and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any other Securities or
any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include
electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that,
notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any
form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by such Trustee.
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 LAW OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
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 OR THEREBY.
The parties hereby (i) irrevocably submit
to the non-exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the city of New York, (ii) waive
any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts
are an inconvenient forum or do not have jurisdiction over any party.
SECTION 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. This Indenture,
any supplemental indenture hereto and the exhibits hereto or thereto set forth the entire agreement and understanding of the parties related
to this transaction and supersedes all prior agreements and understandings, oral or written.
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.
ARTICLE 16
RANKING OF SECURITIES
SECTION 16.01. Ranking.
Except as otherwise provided in a supplemental
indenture or pursuant to Section 2.01, the Company agrees, and each holder by accepting a Security agrees, that the indebtedness
evidenced by the Securities constitutes and will constitute a senior unsecured general obligation of the Company, ranking equally with
other existing and future senior unsecured Indebtedness of the Company, ranking equally with other existing and future senior unsecured
Indebtedness of the Company and ranking senior in right of payment to any future Indebtedness of the Company that is expressly made subordinate
to the Securities by the terms of such Indebtedness.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
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ORANGE COUNTY BANCORP, INC. |
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By: |
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[ ] |
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[ ] |
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[ ], as Trustee |
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By: |
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[ ] |
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[ ] |
Exhibit 4.6
ORANGE COUNTY BANCORP, INC.,
AS ISSUER
AND
[ ],
AS TRUSTEE
SUBORDINATED INDENTURE
DATED AS OF [ ], 20[ ]
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 [ ], 20[ ].
| SECTION OF TRUST INDENTURE ACT |
|
SECTION OF INDENTURE |
| 310(a)(1) and (2) |
|
7.09 |
| 310(a)(3) and (4) |
|
Not applicable |
| 310(a)(5) |
|
7.09 |
| 310(b) |
|
7.08 and 7.10 |
| 311(a) and (b) |
|
7.13 |
| 312(a) |
|
5.01 and 5.02(a) |
| 312(b) and (c) |
|
5.02(b) and (c) |
| 313(a) |
|
5.04(a) |
| 313(b)(1) |
|
Not applicable |
| 313(b)(2) |
|
5.04(b) |
| 313(c) |
|
5.04(c) |
| 313(d) |
|
5.04(d) |
| 314(a) |
|
5.03 |
| 314(b) |
|
Not applicable |
| 314(c)(1) and (2) |
|
14.04 |
| 314(c)(3) |
|
Not applicable |
| 314(d) |
|
Not applicable |
| 314(e) |
|
15.05 |
| 314(f) |
|
Not applicable |
| 315(a), (c) and (d) |
|
7.01 |
| 315(b) |
|
7.14 |
| 315(e) |
|
6.14 |
| 316(a)(1) |
|
6.12 |
| 316(a)(2) |
|
Omitted |
| 316(a) last sentence |
|
8.04 |
| 316(b) |
|
6.08 |
| 316(c) |
|
8.06 |
| 317(a) |
|
6.03 and 6.04 |
| 317(b) |
|
4.03(a) |
| 318(a) |
|
15.07 |
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(s) |
| ARTICLE 1 DEFINITIONS |
1 |
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| SECTION 1.01. |
Definitions |
1 |
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| ARTICLE 2 ISSUE, EXECUTION, REGISTRATION AND EXCHANGE OF SECURITIES |
5 |
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| SECTION 2.01. |
Amount
Unlimited; Issuable in Series |
5 |
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| SECTION 2.02. |
Form of
Trustee’s Certificate of Authentication |
5 |
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| SECTION 2.03. |
Form of
Securities Generally; Establishment of Terms of Series |
6 |
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| SECTION 2.04. |
Securities
in Global Form |
8 |
| |
|
|
| SECTION 2.05. |
Denominations;
Record Date; Payment of Interest |
9 |
| |
|
|
| SECTION 2.06. |
Execution,
Authentication, Delivery and Dating of Securities |
9 |
| |
|
|
| SECTION 2.07. |
Exchange
and Registration of Transfer of Securities |
10 |
| |
|
|
| SECTION 2.08. |
Temporary
Securities |
12 |
| |
|
|
| SECTION 2.09. |
Mutilated,
Destroyed, Lost or Stolen Securities |
12 |
| |
|
|
| SECTION 2.10. |
Cancellation |
13 |
| |
|
|
| SECTION 2.11. |
Book-Entry
Only System |
13 |
| |
|
| ARTICLE 3 REDEMPTION OF SECURITIES |
14 |
| |
|
|
| SECTION 3.01. |
Redemption
of Securities, Applicability of Section |
14 |
| |
|
|
| SECTION 3.02. |
Notice
of Redemption, Selection of Securities |
14 |
| |
|
|
| SECTION 3.03. |
Payment
of Securities Called for Redemption |
15 |
| |
|
|
| SECTION 3.04. |
Redemption
Suspended During Event of Default |
15 |
| |
|
| ARTICLE 4 PARTICULAR COVENANTS OF THE COMPANY |
16 |
| |
|
|
| SECTION 4.01. |
Payment of Principal, Premium and Interest |
16 |
| |
|
|
| SECTION 4.02. |
Offices
for Notices and Payments |
16 |
| |
|
|
| SECTION 4.03. |
Provisions
as to Paying Agent |
16 |
| |
|
|
| SECTION 4.04. |
Statement
as to Compliance |
17 |
| |
|
|
| SECTION 4.05. |
Corporate
Existence |
17 |
| |
|
|
| SECTION 4.06. |
Waiver
of Covenants |
17 |
| |
|
| ARTICLE 5 SECURITYHOLDER LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE |
18 |
| |
|
|
| SECTION 5.01. |
Securityholder
Lists |
18 |
| |
|
|
| SECTION 5.02. |
Preservation
and Disclosure of Lists |
18 |
| |
|
|
| SECTION 5.03. |
Reports
by the Company |
18 |
| |
|
|
| SECTION 5.04. |
Reports
by the Trustee |
19 |
| |
|
| ARTICLE 6 REMEDIES |
19 |
| |
|
|
| SECTION 6.01. |
Events
of Default; Acceleration of Maturity |
19 |
| |
|
|
| SECTION 6.02. |
Rescission and Annulment |
20 |
| |
|
|
| SECTION 6.03. |
Collection
of Indebtedness and Suits for Enforcement by Trustee |
20 |
| |
|
|
| SECTION 6.04. |
Trustee May File Proofs of Claim |
21 |
| |
|
|
| SECTION 6.05. |
Trustee
May Enforce Claims Without Possession of Securities |
21 |
| |
|
|
| SECTION 6.06. |
Application
of Money Collected |
22 |
| |
|
|
| SECTION 6.07. |
Limitation
on Suits |
22 |
| |
|
|
| SECTION 6.08. |
Unconditional
Right of Securityholders to Receive Principal and Interest |
22 |
| |
|
|
| SECTION 6.09. |
Restoration
of Rights and Remedies |
23 |
| |
|
|
| SECTION 6.10. |
Rights
and Remedies Cumulative |
23 |
| |
|
|
| SECTION 6.11. |
Delay
or Omission Not Waiver |
23 |
| |
|
|
| SECTION 6.12. |
Control
by Securityholders |
23 |
| |
|
|
| SECTION 6.13. |
Waiver
of Past Defaults |
24 |
| |
|
|
| SECTION 6.14. |
Undertaking
for Costs |
24 |
| |
|
|
| SECTION 6.15. |
Waiver
of Stay or Extension Laws |
24 |
| |
|
| ARTICLE 7 CONCERNING THE TRUSTEE |
24 |
| |
|
|
| SECTION 7.01. |
Duties
and Responsibilities of Trustee |
24 |
| |
|
|
| SECTION 7.02. |
Reliance on Documents, Opinions, etc. |
25 |
| |
|
|
| SECTION 7.03. |
No Responsibility for Recitals, etc. |
26 |
| |
|
|
| SECTION 7.04. |
Ownership
of Securities |
26 |
| |
|
|
| SECTION 7.05. |
Moneys
to be Held in Trust |
26 |
| |
|
|
| SECTION 7.06. |
Compensation
and Expenses of Trustee |
27 |
| |
|
|
| SECTION 7.07. |
Officers’
Certificate or Opinion of Counsel as Evidence |
27 |
| |
|
|
| SECTION 7.08. |
Disqualifications;
Conflicting Interest of Trustee |
27 |
| |
|
|
| SECTION 7.09. |
Eligibility
of Trustee |
28 |
| |
|
|
| SECTION 7.10. |
Resignation
or Removal of Trustee |
28 |
| |
|
|
| SECTION 7.11. |
Acceptance by Successor Trustee |
29 |
| |
|
|
| SECTION 7.12. |
Successor by Merger, etc. |
29 |
| |
|
|
| SECTION 7.13. |
Limitations
on Rights of Trustee as Creditor |
30 |
| |
|
|
| SECTION 7.14. |
Notice
of Default |
30 |
| |
|
|
| SECTION 7.15. |
Appointment
of Authenticating Agent |
30 |
| |
|
| ARTICLE 8 CONCERNING THE SECURITYHOLDERS |
31 |
| |
|
|
| SECTION 8.01. |
Action
by Securityholders |
31 |
| |
|
|
| SECTION 8.02. |
Proof
of Execution by Securityholders |
32 |
| |
|
|
| SECTION 8.03. |
Who
Are Deemed Absolute Owners |
32 |
| |
|
|
| SECTION 8.04. |
Company-Owned
Securities Disregarded |
32 |
| |
|
|
| SECTION 8.05. |
Revocation
of Consents; Future Securityholders Bound |
33 |
| |
|
|
| SECTION 8.06. |
Record
Date |
33 |
| |
|
| ARTICLE 9 SECURITYHOLDERS’ MEETINGS |
33 |
| |
|
|
| SECTION 9.01. |
Purposes
of Meeting |
33 |
| |
|
|
| SECTION 9.02. |
Call
of Meetings by Trustee |
33 |
| |
|
|
| SECTION 9.03. |
Call
of Meetings by Company or Securityholders |
33 |
| |
|
|
| SECTION 9.04. |
Qualifications
for Voting |
34 |
| |
|
|
| SECTION 9.05. |
Regulations |
34 |
| |
|
|
| SECTION 9.06. |
Voting |
34 |
| |
|
| ARTICLE 10 SUPPLEMENTAL INDENTURES |
35 |
| |
|
|
| SECTION 10.01. |
Supplemental
Indentures without Consent of Securityholders |
35 |
| |
|
|
| SECTION 10.02. |
Supplemental
Indentures with Consent of Holders |
36 |
| |
|
|
| SECTION 10.03. |
Compliance
with Trust Indenture Act; Effect of Supplemental Indentures |
37 |
| |
|
|
| SECTION 10.04. |
Notation
on Securities |
37 |
| |
|
| ARTICLE 11 CONSOLIDATION, MERGER, SALE OR CONVEYANCE |
37 |
| |
|
|
| SECTION 11.01. |
Company
May Consolidate, etc., on Certain Terms |
37 |
| |
|
|
| SECTION 11.02. |
Successor
Corporation Substituted |
38 |
| |
|
|
| SECTION 11.03. |
Opinion
of Counsel and Officers’ Certificate to be Given Trustee |
38 |
| |
|
| ARTICLE 12 SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS |
38 |
| |
|
|
| SECTION 12.01. |
Discharge
of Indenture |
38 |
| |
|
|
| SECTION 12.02. |
Deposited
Moneys to be Held in Trust by Trustee |
39 |
| |
|
|
| SECTION 12.03. |
Paying
Agent to Repay Moneys Held |
39 |
| |
|
|
| SECTION 12.04. |
Return
of Unclaimed Moneys |
39 |
| |
|
| ARTICLE 13 IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS |
39 |
| |
|
|
| SECTION 13.01. |
Indenture
and Securities Solely Corporate Obligations |
39 |
| |
|
| ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE |
39 |
| |
|
|
| SECTION 14.01. |
Applicability
of Article |
39 |
| |
|
|
| SECTION 14.02. |
Defeasance
and Discharge |
40 |
| |
|
|
| SECTION 14.03. |
Covenant
Defeasance |
40 |
| |
|
|
| SECTION 14.04. |
Conditions
to Defeasance or Covenant Defeasance |
40 |
| |
|
|
| SECTION 14.05. |
Deposited
Money and U.S. Government Obligations to be Held in Trust; Other Miscellaneous Provisions |
41 |
| |
|
| ARTICLE 15 MISCELLANEOUS PROVISIONS |
42 |
| |
|
|
| SECTION 15.01. |
Benefits
of Indenture Restricted to Parties and Securityholders |
42 |
| |
|
|
| SECTION 15.02. |
Provisions
Binding on Company’s Successors |
42 |
| |
|
|
| SECTION 15.03. |
Addresses
for Notices, etc., to Company and Trustee |
42 |
| |
|
|
| SECTION 15.04. |
Notice
to Holders of Securities; Waiver |
43 |
| |
|
|
| SECTION 15.05. |
Evidence
of Compliance with Conditions Precedent |
43 |
| |
|
|
| SECTION 15.06. |
Legal
Holidays |
43 |
| |
|
|
| SECTION 15.07. |
Trust
Indenture Act to Control |
44 |
| |
|
|
| SECTION 15.08. |
Execution
in Counterparts |
44 |
| |
|
|
| SECTION 15.09. |
Governing
Law; Waiver of Jury Trial |
44 |
| |
|
|
| SECTION 15.10. |
Severability |
44 |
| |
|
|
| SECTION 15.11. |
Interpretations |
45 |
| |
|
|
| SECTION 15.12. |
U.S.A.
Patriot Act |
45 |
| |
|
| ARTICLE 16
SUBORDINATION OF SECURITIES |
45 |
| |
|
|
| SECTION 16.01. |
Securities
Subordinate to Senior Indebtedness |
45 |
THIS INDENTURE, dated as of [ ], 20[ ] between
Orange County Bancorp, Inc., a corporation duly organized and existing under the laws of the State of Delaware (the “Company”),
and [ ], a [ ], 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 and the purchase and acceptance of the
Securities by the holders thereof, it is mutually covenanted and agreed, 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 indenture
supplemental hereto 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 and in the Securities Act
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 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 Officer” shall have the
meaning set forth in Section 3.02 hereof.
“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), any day other than a Saturday or Sunday that is neither a legal holiday nor a day on which
banking institutions or trust companies in the City of New York, New York, or any Place of Payment are authorized or obligated by law,
regulation or executive order to remain 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, President,
Chief Financial Officer, Vice President, General Counsel, Secretary or Assistant Secretary or Treasurer or Assistant Treasurer and delivered
to the Trustee.
“Corporate Trust Office” means the
office of the Trustee at which at any particular time its corporate trust business shall be principally administered, which office at
the date hereof is located at [ ], Attention: Orange County Bancorp, Inc. Administrator, or such other address as the Trustee may
designate from time to time by notice to the Holders and 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 holders and the Company).
“covenant defeasance” shall have the
meaning set forth in Section 14.03.
“Default” or “default”
shall have the meaning specified in Article 6.
“defeasance” shall have the meaning
set forth in Section 14.02.
“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 Depositary by the Company pursuant to Section 2.03(b), which must be a clearing agency registered under the Exchange
Act, until a successor Depositary shall have become such pursuant to the applicable provisions of this Indenture, and thereafter “Depositary”
shall mean or include each person who is then a Depositary hereunder, and if at any time there is more than one such person, “Depositary”
as used with respect to the Securities of any series shall mean the Depositary with respect to the Securities of such series.
“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 Security” or “Global
Securities” means a Security or Securities, as the case may be, in the form established pursuant to Section 2.03 evidencing
all or part of a Series of Securities, issued to the Depositary for such Series or its nominee, and registered in the name of
such Depositary or nominee.
“holder,” “holder of Securities,”
“securityholder” or other similar term shall mean 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.
“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 indentures supplemental
hereto 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 Orange
County Bank & Trust, 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.
“Officers’ Certificate” shall
mean a certificate signed by the Chief Executive Officer, President or other principal executive officer and by the Chief Financial Officer
or other principal financial officer or principal accounting officer, Assistant Secretary, Treasurer or Controller 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 7.08, 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; 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 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).
“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 its 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, and in each case, who has direct responsibility for the administration of this Indenture.
“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 in respect of letters of credit or bankers acceptances or similar instruments (or reimbursement obligations
with respect thereto), (iv) all obligations to pay the deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) 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) and (vi) 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 capitalized leases under United States generally accepted accounting principles.
“Series” or “Series of Securities”
means each series of debentures, notes or other debt instruments of the Company created pursuant to Sections 2.01 and 2.03.
“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, and if at any time there is more than one such person, “Trustee”
as used with respect to the Securities of any Series shall mean the Trustee with respect to Securities of that Series.
“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.
“USA PATRIOT Act” shall have the meaning
set forth in Section 15.12 hereof.
“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 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 an indenture supplemental hereto or Officers’ Certificate, as set forth in Section 2.03,
may be executed by the Company and delivered to the Trustee for authentication, 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 an indenture supplemental hereto or Officers’ Certificate, 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 and 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. Securities may differ between Series in respect of any
matters; provided that all Series of Securities shall be equally and ratably entitled to the benefits of this Indenture.
SECTION 2.02. Form of Trustee’s Certificate of Authentication.
The form of the Trustee’s certificate of
authentication to be borne by the Securities shall be in substantially the following form:
Form of Trustee’s Certificate of Authentication
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 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 Officers’ Certificate (to which shall
be attached true and correct copies of the relevant Board Resolution(s)) detailing such establishment) or established in an indenture
supplemental hereto.
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.
(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 Officers’ Certificate (to which shall be attached true and correct copies of the relevant Board Resolution(s)) detailing such
establishment) or established in an indenture supplemental hereto, including the following:
(1) the
designation of the particular series (which shall distinguish such series from all other series);
(2) the
aggregate principal amount of such series which 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);
(3) whether
Securities of the series are to be issuable as Registered Securities, whether any Securities of the series are to be issuable initially
in temporary global form and, if so, the name of the Depositary with respect to any such temporary global Security, and whether any Securities
of the series are to be issuable in permanent global form 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 Depositary with
respect to any such permanent global Security;
(4) the
date as of which 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;
(5) 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 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;
(6) the
date or dates on which the principal of the Securities of such series is payable;
(7) 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;
(8) 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;
(9) 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;
(10) 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;
(11) 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;
(12) 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;
(13) if
the principal of (and premium, if any, on) or any interest on the Securities of the series are 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;
(14) 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;
(15) whether
the Securities will be issued in book-entry only form;
(16) any interest rate calculation agents, exchange
rate calculation agents or other agents with respect to Securities of such series;
(17) if
either or both of Section 14.02 and Section 14.03 do not apply to the Securities of the series;
(18) 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;
(19) 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;
(20) 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;
(21) the
terms and conditions, if any, pursuant to which the Securities of the series are secured;
(22) the
subordination terms of the Securities of the series; and
(23) any
other terms of the Securities or provisions relating to the payment of principal, 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 or any third party.
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 Officers’ Certificate referred to above or as set forth in an indenture supplemental hereto, 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 Officers’ 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, Officers’ 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, Officers’
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 (10) 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 in minimum denominations of $1,000.
(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 Dollars; 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 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, its President or one of its Vice Presidents. Such signatures may be the manual, electronic or
facsimile signatures of such then current officers.
Any Security 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 bearing the manual, electronic or facsimile signatures
of individuals who were, at the actual date of the execution of such Security, 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, 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 Officers’ Certificate as to the incumbency and specimen signatures of officers authorized
to execute and deliver the Securities and give instructions under this Section and, as long as Securities are Outstanding under this
Indenture, such incumbency certificate shall be amended and replaced whenever an officer is to be added or deleted from the listing. 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, (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.
Prior to the issuance of a Security of any new
series, 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 Officers’ Certificate or indenture supplemental hereto establishing the terms and the form of the Securities
of that series pursuant to Section 2.01 and Section 2.03;
(b) An
Officers’ Certificate stating that all conditions precedent provided for in this Indenture relating to the issuance, authentication
and delivery of Securities in such form have been complied with;
(c) An
Opinion of Counsel stating that the form and terms of such Securities have been established in conformity with the provisions of this
Indenture; 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 rely, as to the authorization by the Company of any of such Securities, the form and terms thereof
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 Officers’ Certificate or indenture supplemental hereto.
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 Officers’ Certificate or indenture supplemental hereto delivered pursuant to Section 2.03, except
as provided in Section 2.08.
No Security shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on such Security, a certificate of authentication substantially
in the form provided for 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.
(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 their 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, or (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.
(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 Depositary (which instructions shall be in writing), such permanent global Security shall
be surrendered from time to time by the Depositary or such other depositary 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 shall be in the form of Registered Securities; 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. Promptly following any such exchange in part, such permanent
global Security should be returned by the Trustee or the Security Registrar to the Depositary or such other 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.
(e) Notwithstanding
anything contained herein to the contrary, neither the Trustee nor the Security Registrar shall be responsible for ascertaining whether
any transfer complies with the restrictions set forth in this Indenture, the registration provisions of or exemptions from the Securities
Act or applicable state securities laws.
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, 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.
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, 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.
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 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 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.
If any mutilated Security 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.
If there shall be delivered to the Company and
the Trustee (a) evidence to their satisfaction of the destruction, loss or theft of any Security and (b) 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 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, a new Security
of the same series and of like tenor and principal amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or
stolen Security has become or is about to become due and payable, the Company in its discretion may, instead of issuing a new Security,
pay such Security.
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 issued pursuant
to this Section in lieu of any destroyed, lost or stolen Security shall constitute an original additional contractual obligation
of the Company, whether or not the destroyed, lost or stolen Security shall be at any time enforceable by anyone, and any such new Security,
if any, shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Securities of that
series 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.
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, shall, if surrendered to the
Company or any agent of the Company or of the Trustee, be delivered to the Trustee. All Registered Securities so delivered shall be promptly
cancelled by the Trustee, upon written request of the Company. 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 held by the Trustee shall be disposed in accordance with its then customary procedures and, upon
written request of the Company, the Trustee shall deliver to the Company a certificate of such disposal. The acquisition of any Securities
by the Company shall not operate as a redemption or satisfaction of the Indebtedness represented thereby unless and until such Securities
are surrendered to the Trustee for cancellation.
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 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 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 Depositary, or such other depositary, as the case may be.
Members of, or participants in, the Depositary
shall have no rights under this Indenture with respect to any Global Security held on their behalf by the Depositary, or the Trustee as
its custodian, or under the Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner of the Global Security for all purposes whatsoever.
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 written 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 Board
Resolutions, as described in Section 2.03, or (b) as determined by the Chief Executive Officer, the Chief Financial Officer,
the President, the Treasurer, any Executive Vice President, the Secretary and each officer of the Company designated by any of the foregoing
officers (each, an “Authorized Officer”) and evidenced by the preparation of an offering document or an Officers’ Certificate
specifying the period of notice of such redemption. If the Board Resolutions or an Authorized Officer do not specify a longer period of
notice of such redemption, the Company or, at the written request of the Company, the Trustee, shall give notice of such redemption, in
the manner and to the extent set forth in Section 15.04, at least ten 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 in writing in an Officers’ Certificate delivered to the Trustee at least ten 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 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. 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.
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, by lot or in such other manner is it shall deem appropriate and fair, 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.
On presentation and surrender of such Securities subject to redemption at the Place of Payment and in the manner specified in such notice,
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 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.
Any Security 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 has received written notice thereof, 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 and this Indenture.
SECTION 4.02. Offices for Notices and Payments.
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.
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,
and the Company hereby appoints the same as its agent to receive such respective presentations, surrenders, notices and demands.
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 principal
Corporate Trust Office of the Trustee as the office of the Company 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, however, that the Trustee shall not be deemed an agent of the Company for service of legal
process.
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 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), an Officers’
Certificate signed by the Chief Executive Officer, President or other principal executive officer and by the Chief Financial Officer or
other principal financial officer or principal accounting officer, Assistant Secretary, Treasurer or Controller 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 their supervision;
and
(b) to
the best of their 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 them and the nature
and status thereof.
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 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 (1) semiannually, within 15 days before each record date when any Securities of a series
are Outstanding, a list, in such form 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 such Registered Securities as of such date, and (2) at such other times as the Trustee
may request in writing, within 10 days after receipt by the Company of any such request, a list, in such form 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 as of a date not more than 15 days prior to the time such information is furnished; 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.
(a) The
Company covenants so long as Securities are Outstanding, the Company shall file with the Trustee and the Commission, and transmit to holders,
copies of such information, documents and other reports, and such summaries thereof, as may be required pursuant to the Trust Indenture
Act at the times and in the manner provided pursuant to such Act; provided, that with respect to any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act, the Company intends to file such
information, documents or reports with the Commission in electronic form in accordance with Regulation S-T of the Commission using the
Commission’s Electronic Data Gathering, Analysis and Retrieval system. Compliance with the foregoing, or any successor electronic
system approved by the Commission, will constitute delivery by the Company of such reports to the Trustee and holders in compliance with
the Trust Indenture Act.
(b) Notwithstanding
anything to the contrary herein, the Trustee will have no duty to search for or obtain any electronic or other filings that the Company
makes with the Commission, regardless of whether such filings are periodic, supplemental or otherwise. Delivery of the reports, information
and documents to the Trustee in accordance with this Section 5.03 will be solely for the purposes of compliance with Section 314(a) of
the Trust Indenture Act. The Trustee’s receipt of such reports, information and documents (whether or not filed in electronic form)
is for informational purposes only and the Trustee’s receipt of such will not constitute actual or constructive notice of any information
contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates). The Trustee shall have no liability
or responsibility for the filing, content or timelines of any report hereunder aside from any report transmitted under this Indenture.
SECTION 5.04. Reports by the Trustee.
(a) Within
60 days after [ ] of each year commencing with the first [ ] following the first issuance of Securities pursuant to Section 2.01,
so long as any Securities are outstanding hereunder and if there has been any change in the following, the Trustee shall transmit by mail,
first-class postage prepaid, to the securityholders, as their names appear upon the Security Register, a brief report dated as of such
[ ] with respect to any of the events specified in Section 313(a) and Section 313(b)(2) of the Trust Indenture Act
that may have occurred since the later of the immediately preceding [ ] and the date of this Indenture.
(b) The
Trustee shall transmit the reports required by Section 313(a) of the Trust Indenture Act at the times specified therein.
(c) The
Trustee shall comply with Sections 313(b) and 313(c) of the Trust Indenture Act.
(d) Reports
under this Section will be transmitted in the manner and to the Persons required by Section 313(c) and Section 313(d) of
the Trust Indenture Act. The Company agrees to notify the Trustee when any Securities become listed 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 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 under any applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or shall consent to the entry of an 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; 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, either the Trustee or the holders of not
less than 25% in aggregate principal amount of all 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 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) to be due and payable
immediately, and upon any such declaration the same shall become and shall be 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, or
(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,
then the Company will, upon demand of the Trustee, pay to it, for the
benefit of the holders of such Securities, the whole amount that shall have become due and payable on such Securities 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 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 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, to pay to the Trustee any amount due to it for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, and any other amounts due the Trustee under Section 7.06. 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 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 any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or the rights of any holder thereof, or to authorize the Trustee to vote in respect
of the claim of any holder of a Security in any such proceeding.
SECTION 6.05. Trustee May Enforce Claims Without Possession
of Securities.
All rights of action and claims under this Indenture
or the Securities may be prosecuted and enforced by the Trustee without the possession of any of the Securities or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery 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 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, 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
under Section 7.06 or 14.05;
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, 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, 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 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 indemnity 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 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.
SECTION 6.08. Unconditional Right of Securityholders to Receive
Principal and Interest.
Notwithstanding any other provision in this Indenture,
the holder of any Security shall have the right, which is absolute and unconditional, to receive payment of the principal of and premium,
if any, and (subject to Section 2.05 and Section 3.02) any interest on such Security on the respective stated maturities expressed
in such Security (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 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 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 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 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 may be exercised from time to time, and as often as may be deemed expedient, by the Trustee or by the holders of
Securities, 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 (provided, however, that the Trustee shall not have an affirmative obligation to determine whether
such action is unduly 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, waive any past
default hereunder and its consequences, except a default:
(a) in
the payment of the principal of, premium, if any, or any interest on any Security; or
(b) 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 by their 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 for
the enforcement of the payment of the principal of, premium, if any, or any interest on any Security on or after the respective stated
maturities expressed in such Security (or, in the case of redemption, on or after the redemption date, 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 bad
faith 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 be under a duty to examine the same to determine whether or not they conform on their face 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 person would exercise or use under the circumstances in the conduct of their 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 a Responsible Officer or Officers, 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 and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, judgement, 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 not only as the due execution, validity and effectiveness, but also
as to the truth and accuracy of any information contained herein. The Trustee need not investigate any fact or matter stated in the 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, in the absence of bad faith or willful misconduct on its part,
rely upon an Officers’ Certificate and/or Opinion of Counsel;
(c) the
Trustee may consult with counsel of its selection and the advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(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 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 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 will the Trustee be responsible or liable for special, indirect, incidental, punitive or consequential loss or damage of any
kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Trustee has been advised of the likelihood
of such loss or damage and regardless of the form of action;
(i) in
no event will 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 reasonable control, including, without limitation, strikes, pandemics, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances, sabotage, epidemics, riots, nuclear or natural catastrophes,
earthquakes, fires, floods, or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software
or hardware) services, labor disputes, acts of civil or military authorities and governmental actions, or the unavailability of the Federal
Reserve Bank wire or telex or other wire or communication facility; it being understood that the Trustee will use reasonable efforts that
are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances;
(j) the
Trustee shall not be required to give any bond or surety in respect of the performance of its powers hereunder;
(k) the
Trustee may request that the Company deliver a certificate setting forth the names of individuals and/or titles of officers authorized
at such time to take specified actions pursuant to this Indenture; and
(l) the
permissive rights of the Trustee to do things enumerated in this Indenture shall not be construed as a duty and, with respect to such
permissive rights, the Trustee shall not be answerable other than for its negligence or willful misconduct.
SECTION 7.03. No Responsibility for Recitals, etc.
The recitals contained herein and in the Securities,
other than the Trustee’s certificate of authentication, 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, 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 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 un-invested 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 and Expenses of Trustee.
The Company covenants and agrees to pay to the
Trustee from time to time, and the Trustee shall be entitled to, such compensation for all services rendered by it hereunder as agreed
in writing between the Company and the Trustee (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 will pay or 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 each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss, damage, claims, suit, liability or expense, (including attorney’s
fees and expenses, and 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, whether asserted by the Company, a Holder or any
other person. 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. This indemnification shall apply to officers,
directors, employees, shareholders and agents of the Trustee.
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 provisions of this Section shall survive
the resignation or removal of the Trustee and the termination of this Indenture.
SECTION 7.07. Officers’ Certificate or Opinion of Counsel
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, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers’ Certificate or Opinion of Counsel delivered to the Trustee, and such certificate
or opinion, in the absence of negligence, bad faith or willful misconduct on the part of the Trustee, 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 at the expense of the Company. Such court may thereupon,
after such notice, if any, as it may deem proper and prescribe, appoint a successor trustee.
(b) In
case at any time any of the following shall occur:
(1) the
Trustee shall fail to comply with 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, or
(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, 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
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) Upon
30 days’ prior written notice, 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 an indenture supplemental hereto 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 ten 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 of which a Responsible Officer of the Trustee has received notice or is deemed to have notice in accordance
with this Section 7.14, 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 actually known to a Responsible Officer of 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 a Responsible Officer of the Trustee in good faith determine 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. The Trustee will not be required to take notice
or be deemed to have notice of any default or Event of Default, except failure by the Company to pay or cause to be made any of the payments
required to be made to the Trustee, unless a Responsible Officer shall receive written notice of such default or Event of Default from
the Company or by the holders of at least 25% in aggregate principal amount of the then Outstanding Securities delivered to the Corporate
Trust Office of the Trustee and such notice states that it is a notice of a default or Event of Default with respect to the Securities
and this Indenture, and in the absence of such notice so delivered the Trustee may conclusively assume no default or Event of Default
exists. 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.
| |
[ ],
as Trustee
By: [ ], as Authenticating Agent |
| |
By: |
|
| |
Authorized Signatory
Date:
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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,
or (b) 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 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 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 them 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
and Section 2.07, 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 their 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.
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 Depositary, or impair, as between
a 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 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 actually 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 be 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 principal
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 [ ], [ ] or 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 [ ], [ ] 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 and
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.
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 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; 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,
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
establish any series of Securities and the form or terms of securities of any series as permitted by Section 2.01 and Section 2.03,
including, without limitation, any subordination provisions and any conversion or exchange provisions applicable to Securities that are
convertible into or exchangeable for other securities or property, and any deletions from or additions or changes to this Indenture in
connection therewith (provided that any such deletions, additions and changes shall not be applicable to any other series of Securities
then Outstanding);
(d) to
add any additional Events of Default with respect to all or any series of Securities (as shall be specified in such supplemental indenture)
or change any of the provisions of this Indenture regarding acceleration of maturity upon an Event of Default;
(e) to
supplement any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the defeasance, covenant
defeasance and/or satisfaction and discharge of any series of Securities pursuant to Article 14, provided that any such action shall
not adversely affect the interests of any holder of a Security of such series or any other Security in any material respect;
(f) to
add to or change any of the provisions of this Indenture to such extent as shall be necessary to permit or facilitate the issuance of
Securities, registrable or not registrable as to principal;
(g) to
make provisions with respect to conversion or exchange rights of holders of Securities of any series;
(h) in
the case of any series of Securities which are convertible into or exchangeable for commodities or for the securities of the Company to
safeguard or provide for the conversion or exchange rights, as the case may be, of such Securities in the event of any reclassification
or change of outstanding securities or any merger, consolidation, statutory share exchange or combination of the Company with or into
another Person or any sale, lease, assignment, transfer, disposition or other conveyance of all or substantially all of the properties
and assets of the Company to any other Person or other similar transactions, if expressly required by the terms of such series of Securities
established pursuant to Section 2.03;
(i) to
add to, delete from or revise the conditions, limitations or restrictions on issue, authentication and delivery of Securities of any series;
(j) 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;
(k) 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;
(l) to
conform the Indenture or the Securities to the description thereof in the related prospectus, offering memorandum or disclosure document
(as provided in an Officers’ Certificate delivered to the Trustee);
(m) 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;
(n) to
add guarantees with respect to, or to secure, any series of Security;
(o) 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; and
(p) to
make any change to the Securities of any series or to make any other provisions in regard to matters or questions arising under this Indenture
that do not adversely affect the legal rights under this Indenture of any holder of Securities of any series issued under this Indenture,
including provisions necessary or desirable to provide for or facilitate the administration of the trusts hereunder.
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 under this Indenture; provided, that no such supplemental indenture shall (a) 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, (b) 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, (c) modify the subordination provisions in a manner adverse to the holders of such Securities,
or (d) 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 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 Officers’ Certificate and Opinion
of Counsel as conclusive evidence that any such supplemental indenture complies with the provisions of this Article 10 and that all
conditions precedent thereto have been satisfied.
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 Company 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 Company 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 (a) 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 in form satisfactory to the Trustee, executed and delivered
to the Trustee by such corporation, and (b) 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 phraseology 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 Officers’ Certificate
to be Given Trustee.
The Trustee shall receive an Opinion of Counsel
and Officers’ 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 (other than (i) Securities
that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.09, and (ii) Securities
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 not theretofore delivered to the Trustee for cancellation (i) shall have become due and payable, or
(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 (b)(i), (b)(ii) or
(b)(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 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 proper instruments 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 and properly 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 Officers’
Certificate and an Opinion of Counsel which together shall state that all conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture have been complied with.
SECTION 12.02. Deposited Moneys to be Held in Trust by Trustee.
Subject to the provisions of clause (e) of
Section 4.03, 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.
Subject to applicable law, 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 upon written request from the Company,
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 because of any indebtedness evidenced thereby, shall be had against any
incorporator, or against any past, present or future stockholder, officer, director or employee, 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 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 proper instruments
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, or (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(a) and Section 6.01(b) 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 7.08 or for purposes of the Trust Indenture Act with respect to any securities of the Company 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 Officers’ 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 request, demand, authorization, direction,
notice, consent, waiver or other document provided or permitted by this Indenture is duly given if in writing and delivered in person
or delivered by first-class postage prepaid mail, facsimile, email or overnight air courier guaranteeing next day delivery, to the other’s
address:
(1) If
to the Trustee, addressed to the Trustee at the principal Corporate Trust Office of the Trustee, [ ], Attention: Orange County Bancorp, Inc.
Administrator, Telephone: [ ].
(2) If
to the Company by the Trustee or by the holders of Securities, addressed to it at [ ], Attention: [ ], Email: [ ].
The Company or the Trustee by written notice to
the other may designate additional or different addresses for subsequent notices or communications.
All notices and communications will be deemed to
have been duly given: five Business Days after being deposited in the mail, postage prepaid, if delivered by mail; on the first Business
Day after being sent, if sent by facsimile and the sender receives confirmation of successful transmission; upon confirmation of transmittal
(but excluding any automatic reply to such email), if sent by email; and the next Business Day after timely delivery to the courier, if
sent by overnight air courier guaranteeing next day delivery.
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, 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.
In case by reason of the suspension of regular
mail service or by reason of any other cause it shall be impracticable to give such notice to holders of Registered Securities by mail,
then such notification as shall be made with the approval of the Trustee shall constitute sufficient notice to such holders for every
purpose hereunder. 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.
Notwithstanding any other provision of this Indenture
or any Security, where this Indenture or any Security provides for notice of any event (including any notice of redemption) to a Holder
of a Global Security (whether by mail or otherwise), such notice shall be sufficiently given when delivered to the Depositary for such
Security (or its designee) pursuant to the customary procedures of such Depositary.
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.
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 Officers’
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 Officers’ 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 (a) a statement that the person making such certificate or opinion has read such covenant or condition;
(b) 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; (c) a statement that, in the opinion of such person, they have made such examination or
investigation as is necessary to enable them to express an informed opinion as to whether or not such covenant or condition has been complied
with; and (d) 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 City of New York, New York or in such other Place of Payment as the Company may designate pursuant to Section 4.02, or a day on
which banking institutions in City of New York, New York or in such other Place of Payment are authorized or obligated by law, regulation
or executive order to remain closed, 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 electronic format (e.g., “.pdf” or
“.tif”) 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 electronic format
(e.g., “.pdf” or “.tif”) will be deemed to be their original signatures for all purposes. Unless otherwise provided
herein or in any other Securities, the words “execute”, “execution”, “signed”, and “signature”
and words of similar import used in or related to any document to be signed in connection with this Indenture, any other Securities or
any of the transactions contemplated hereby (including amendments, waivers, consents and other modifications) shall be deemed to include
electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability
as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent and as
provided for in any Applicable Law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State
Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act, provided that,
notwithstanding anything herein to the contrary, the Trustee is not under any obligation to agree to accept electronic signatures in any
form or in any format unless expressly agreed to by such Trustee pursuant to procedures approved by such Trustee.
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 LAW OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
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 OR THEREBY.
The parties hereby (i) irrevocably submit
to the non-exclusive jurisdiction of any federal or state court sitting in the Borough of Manhattan, the city of New York, (ii) waive
any objection to laying of venue in any such action or proceeding in such courts, and (iii) waive any objection that such courts
are an inconvenient forum or do not have jurisdiction over any party.
SECTION 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. This Indenture,
any supplemental indenture hereto and the exhibits hereto or thereto set forth the entire agreement and understanding of the parties related
to this transaction and supersedes all prior agreements and understandings, oral or written.
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.
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.
IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above written.
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ORANGE COUNTY BANCORP, INC. |
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By: |
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[ ] |
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[ ] |
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[ ], as Trustee |
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By: |
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[ ] |
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[Vice President] |
Exhibit
5.1
LUSE
GORMAN, PC
ATTORNEYS AT LAW
5335 WISCONSIN AVENUE,
N.W., SUITE 780
WASHINGTON, D.C.
20015
TELEPHONE (202)
274-2000
FACSIMILE (202)
362-2902
www.luselaw.com
July 12, 2024
The Board of Directors
Orange County Bancorp,
Inc.
212 Dolson Avenue
Middletown, New York 10940
| Re: | Registration Statement on Form S-3 |
Ladies and Gentlemen:
We have acted as
special counsel to Orange County Bancorp, Inc., a Delaware corporation (the “Company”), in connection with the preparation
of a registration statement on Form S-3 (the “Registration Statement”) filed by the Company with the Securities and
Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”), with respect
to the registration and public offering by the Company, from time to time, pursuant to Rule 415 under the Act, of up to $100.0 million
in aggregate offering amount of securities, consisting of one or more of the following:
| (i) | senior debt securities of the Company
(“Senior Debt Securities”) and subordinated debt securities of the Company (“Subordinated
Debt Securities” and together with the Senior Debt Securities, the “Debt Securities”); |
| (ii) | shares of common stock, $0.50 par value
per share, of the Company (“Common Stock”); |
| (iii) | warrants to purchase Debt Securities
or Common Stock (“Warrants”); |
| (iv) | purchase contracts for the purchase
or sale of Debt Securities or Common Stock (“Purchase Contracts”); |
| (v) | subscription rights to purchase Debt
Securities or Common Stock (“Subscription Rights”); and |
| (vi) | units comprised of one or more of the
securities of the Company described above, in any combination (“Units”). |
LUSE GORMAN,
PC
ATTORNEYS AT LAW
Orange County Bancorp, Inc.
July 12, 2024
Page 2
The Debt Securities,
Common Stock, Warrants, Purchase Contracts, Subscription Rights and Units are collectively referred to herein as the “Securities.”
The Senior Debt
Securities are to be issued pursuant to a Senior Debt Indenture (the “Senior Indenture”), and the Subordinated Debt Securities
are to be issued pursuant to a Subordinated Debt Indenture (the “Subordinated Indenture”), the respective forms of which
have been filed as exhibits to the Registration Statement (collectively, the “Indentures”), and are to be entered into, in
each case, between the Company and a trustee (the “Trustee”).
We have examined:
(i) the Registration Statement, including all exhibits thereto; (ii) the respective forms of Indentures filed as exhibits to the
Registration Statement; (iii) the Certificate of Incorporation and Bylaws of the Company, each in effect as of the date hereof;
(iv) corporate proceedings of the Company relating to the registration of the Securities, and related matters; and (v) such
other agreements, proceedings, documents and records and such matters of law as we have deemed necessary or appropriate to enable us
to render this opinion.
As to certain facts
material to our opinion, we have relied, to the extent we deem such reliance proper, upon certificates of public officials and officers
of the Company. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents and instruments
submitted to us as originals and the conformity to the originals of all documents and instruments submitted to us as certified or conformed
copies. In addition, we have assumed the accuracy and completeness of all records, documents, instruments and materials made available
to us by the Company.
Our opinion is limited
to the matters set forth herein, and we express no opinion other than as expressly set forth herein. In rendering the opinions set forth
below, we do not express any opinion concerning laws other than the securities laws of the United States and the laws of the State of
Delaware and the State of New York (as they relate to the enforceability of documents, agreements and instruments referred to herein)
and we are expressing no opinion as to the effect of the laws of any other jurisdiction or the securities or “blue sky” laws
of any jurisdiction. Our opinion is expressed as of the date hereof and is based on laws currently in effect. Accordingly, the conclusions
set forth in this opinion are subject to change if any laws should change or be enacted in the future. We are under no obligation to
update this opinion or to otherwise communicate with you in the event of any such change.
LUSE GORMAN,
PC
ATTORNEYS AT LAW
Orange County Bancorp, Inc.
July 12, 2024
Page 3
In addition, we
have assumed that (i) the Registration Statement, and any amendments thereto (including post-effective amendments), will have
become effective under the Act, (ii) a prospectus supplement and/or any required pricing supplement will have been filed with
the Commission describing the Securities offered thereby, (iii) all Securities will be issued and sold in compliance with
applicable federal and state securities laws and in the manner stated in the Registration Statement, the applicable prospectus
supplement and any applicable pricing supplement, (iv) a definitive purchase, underwriting or similar agreement with respect to
any Securities offered will have been duly authorized and validly executed and delivered by the Company and the other party or
parties thereto, (v) any Securities issuable upon conversion, exchange, redemption or exercise of any Securities being offered will
have been duly authorized, created and, if appropriate, reserved for issuance upon such conversion, exchange, redemption, or
exercise, (vi) with respect to shares of Common Stock offered, there will be sufficient shares of unissued Common Stock authorized
under the Company’s Certificate of Incorporation and not otherwise reserved for issuance at the time of issuance thereof,
(vii) in the case of an Indenture, Warrant Agreement, Purchase Contract, Subscription Rights Agreement, Unit Agreement or other
agreement pursuant to which any Securities are to be issued, there shall be no terms or provisions contained therein that would
affect the opinions rendered herein, and (viii) all actions are taken by the Company so as not to violate any applicable law or
result in a default under or breach of any agreement or instrument binding upon the Company and so as to comply with any requirement
or restriction imposed by any court or governmental body having jurisdiction over the Company.
Our opinions set
forth below are subject to (i) the effects of bankruptcy, insolvency, reorganization, receivership, moratorium, avoidable transfer
or other laws affecting the rights and remedies of creditors generally (including, without limitation, the effect of statutory and other
laws regarding fraudulent conveyances, fraudulent transfers and preferential transfers), (ii) the exercise of judicial discretion
and the application of principles of equity, good faith, fair dealing, reasonableness, conscionability and materiality (regardless of
whether the enforceability of the Securities, to the extent applicable, is considered in a proceeding at law or in equity), (iii) the
possible unenforceability of indemnity and contribution provisions, (iv) the effect and possible unenforceability of choice of law
provisions, (v) the possible unenforceability of provisions purporting to waive rights or defenses where such waiver is against
public policy, (vi) the possible unenforceability of provisions purporting to exonerate any party for negligence or malfeasance,
or to negate any remedy of any party for fraud, (vii) the possible unenforceability of forum selection clauses, (viii) the
possible unenforceability of provisions permitting modification of an agreement only in writing, and (ix) the possible unenforceability
of provisions purporting to allow action without regard to mitigation of damages.
On the basis of
the foregoing and the other matters set forth herein, we hereby are of the opinion that:
(1) Debt
Securities. With respect to any series of Debt Securities to be issued under either the Senior Indenture or Subordinated Indenture,
when (a) the Trustee is qualified to act as Trustee under the Senior Indenture or Subordinated Indenture, as applicable,
(b) the Trustee has duly executed and delivered the Senior Indenture or Subordinated Indenture, as applicable, (c) the
Senior Indenture or Subordinated Indenture, as applicable, has been duly authorized and validly executed and delivered by the
Company to the Trustee, (d) the Senior Indenture or Subordinated Indenture, as applicable, has been duly qualified under the
Trust Indenture Act of 1939, as amended, (e) the Board of Directors of the Company or a duly constituted and acting committee
thereof (such Board of Directors or committee being hereinafter referred to as the “Board”) has taken all necessary
corporate action to approve the issuance and terms of such Debt Securities, the terms of the offering thereof and related matters,
and (f) such Debt Securities have been duly executed, authenticated, issued and delivered in accordance with the provisions of
the Senior Indenture or Subordinated Indenture, as applicable, and the applicable definitive purchase, underwriting or similar
agreement has been approved by the Board, or upon the conversion or exercise of Warrants or other Securities to purchase Debt
Securities, upon payment of the consideration therefor provided for therein, then such Debt Securities will constitute valid and
binding obligations of the Company.
LUSE GORMAN,
PC
ATTORNEYS AT LAW
Orange County Bancorp, Inc.
July 12, 2024
Page 4
(2) Common
Stock. With respect to shares of Common Stock, when (a) the Board has taken all necessary corporate action to approve the issuance
of and the terms of the offering of the shares of Common Stock and related matters and (b) the shares of Common Stock have been
issued, sold and delivered in the manner contemplated by the Registration Statement either (i) in accordance with the applicable
definitive purchase, underwriting or similar agreement approved by the Board, or upon the conversion or exercise of Warrants or other
Securities to purchase Common Stock, upon payment of the consideration therefor (not less than the par value of the Common Stock) provided
for therein or (ii) upon conversion or exercise of Warrants or other Securities, in accordance with the terms of such Securities
or the instrument governing such Securities providing for such conversion or exercise as approved by the Board, for the consideration
approved by the Board, then such shares of Common Stock will be validly issued, fully paid and nonassessable.
(3) Warrants.
With respect to any Warrants, when (a) the Board has taken all necessary corporate action to approve the issuance and terms of such
Warrants, the terms, execution and delivery of the warrant agreement relating to the Warrants (“Warrant Agreement”), the
terms of the offering thereof and related matters, (b) the Warrant Agreement has been duly authorized and validly executed and delivered,
and (c) such Warrants have been duly executed, attested, issued and delivered by duly authorized officers of the Company in accordance
with the provisions of the applicable Warrant Agreement and the applicable definitive purchase, underwriting or similar agreement approved
by the Board, upon payment of the consideration therefor provided for therein, or upon the conversion or exercise of other Securities
in accordance with the terms of such Securities or the instrument governing such Securities providing for such conversion or exercise
as approved by the Board, upon payment of the consideration therefor provided for therein, then such Warrants will constitute valid and
binding obligations of the Company.
LUSE GORMAN,
PC
ATTORNEYS AT LAW
Orange County Bancorp, Inc.
July 12, 2024
Page 5
(4) Units.
With respect to any Units, when (a) the Board has taken all necessary corporate action to approve the issuance and terms of
such Units, the terms, execution and delivery of the unit agreement relating to the Units (“Unit Agreement”), the terms
of the offering thereof and related matters, (b) the Unit Agreement has been duly authorized and
validly executed and delivered, and (c) such Units have been duly executed, authenticated, issued and delivered by duly
authorized officers of the Company in accordance with the provisions of the applicable Unit Agreement and the applicable definitive
purchase, underwriting or similar agreement approved by the Board, or upon the exercise of Warrants or Subscription Rights to
purchase Units, upon payment of the consideration therefor provided for therein, then such Units will constitute valid and binding
obligations of the Company.
(5) Purchase
Contracts. With respect to any Purchase Contracts, when (a) the Board has taken all necessary corporate action to approve
the issuance, terms, execution and delivery of the Purchase Contracts and the terms of the offering thereof and related matters,
(b) the Purchase Contracts have been duly authorized, executed and delivered by each of the parties thereto, and (c) the Purchase
Contracts have been issued and sold upon payment of the consideration therefor provided for therein, then such Purchase Contracts will
constitute valid and binding obligations of the Company.
(6) Subscription
Rights. With respect to any Subscription Rights, when (a) the Board has taken all necessary corporate action to approve the issuance
and terms of such Subscription Rights, the terms, execution and delivery of the subscription agreement relating to the Subscription Rights
(“Subscription Agreement”), the terms of the offering thereof and related matters, (b) the Subscription Agreement has
been duly authorized and validly executed and delivered, and (c) such Subscription Rights have been duly executed, attested, issued
and delivered by duly authorized officers of the Company in accordance with the provisions of the applicable Subscription Agreement and
the applicable definitive purchase, underwriting or similar agreement approved by the Board, upon payment of the consideration therefor
provided for therein, then such Subscription Rights will constitute valid and binding obligations of the Company.
We hereby consent
to the filing of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading “Legal Opinion”
in the Prospectus constituting a part of the Registration Statement. By giving such consent, we do not hereby admit that we are in the
category of persons whose consent is required under Section 7 of the Act.
| |
Very truly yours, |
| |
|
| |
/s/ Luse Gorman, PC |
| |
LUSE GORMAN, PC |
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING
FIRM
We consent to the incorporation by reference in
this Registration Statement on Form S-3 of Orange County Bancorp, Inc. of our report dated March 29, 2024, relating to
the consolidated financial statements appearing in the Annual Report on Form 10-K of Orange County Bancorp, Inc. for the year
ended December 31, 2023, and to the reference to us under the heading “Experts” in the prospectus.
Livingston, New Jersey
July 12, 2024
Exhibit 107
Calculation of Filing
Fee Tables
Form S-3
(Form Type)
Orange County Bancorp,
Inc.
(Exact Name of Registrant
as Specified in its Charter)
Table 1: Newly Registered
Securities
Security
Type | |
Security
Class Title | |
Fee
Calculation
Rule | |
Amount
Registered
(1)(2) | |
Proposed
Maximum
Aggregate
Offering
Price Per
Share (1)(2) | |
Maximum
Aggregate
Offering Price
(1)(2)(3) | | |
Fee Rate | | |
Amount of
Registration Fee
(3) | |
| Debt | |
Debt securities | |
| |
| |
| |
| | | |
| | | |
| | |
| Equity | |
Common stock, $0.50 par value per share | |
| |
| |
| |
| | | |
| | | |
| | |
| Other | |
Warrants | |
| |
| |
| |
| | | |
| | | |
| | |
| Other | |
Purchase Contracts | |
| |
| |
| |
| | | |
| | | |
| | |
| Other | |
Units (4) | |
| |
| |
| |
| | | |
| | | |
| | |
| Other | |
Subscription Rights | |
| |
| |
| |
| | | |
| | | |
| | |
| Unallocated (Universal) Shelf | |
| |
| |
| |
| |
$ | 100,000,000 | | |
| 0.00014760 | | |
$ | 14,760 | |
| Total Offering Amounts | |
| |
$ | 100,000,000 | | |
| 0.00014760 | | |
$ | 14,760 | |
| Total Fees Previously Paid | |
| |
| | | |
| | | |
| – | |
| Total Fee Offsets | |
| |
| | | |
| | | |
$ | 11,020 | |
| Net Fee Due | |
| |
| | | |
| | | |
$ | 3,740 | |
Table 2: Fee Offset Claims
and Sources
| | |
Registrant
or Filer
Name | |
Form
or
Filing
Type | |
File Number | |
Initial
Filing
Date | |
Filing
Date | |
Fee
Offset
Claimed | | |
Security
Type
Associated
with Fee
Offset
Claimed | |
Security
Title
Associated
with Fee
Offset
Claimed | |
Unsold
Securities
Associated
with Fee
Offset
Claimed | |
Unsold
Aggregate
Offering
Amount
Associated
with Fee
Offset
Claimed | | |
Fee Paid with Fee Offset
Source |
|
| Rule 457(p) |
|
| Fee Offset Claims | |
Company | |
S-3 | |
333-268635 | |
December 1, 2022 | |
| |
$ | 11,020 | | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
Unallocated (Universal) Shelf | |
$ | 100,000,000 | |
|
|
|
| Fee Offset Sources | |
Company | |
S-3 | |
333-268635 | |
| |
December 1, 2022 | |
| | | |
| |
| |
| |
| | | $ |
11,020 |
(5) |
| (1) | The proposed amount to be registered, maximum
offering price per class of security and maximum aggregate offering price per class of security
will be determined from time to time by the registrant in connection with the issuance by
the registrant of the securities registered hereunder. |
| (2) | This registration statement covers such indeterminate
number of shares of common stock and an indeterminate amount of debt securities, warrants,
purchase contracts, units and subscription rights of Orange County Bancorp, Inc., having
an aggregate initial offering price not to exceed $100,000,000. The securities registered
hereunder are to be issued from time to time at prices to be determined. In addition, pursuant
to Rule 416 promulgated under the Securities Act of 1933, as amended (the “Securities
Act”), the shares being registered hereunder include such indeterminate number of shares
of common stock as may be issuable with respect to the securities being registered hereunder
as a result of stock splits, stock dividends or similar transactions. |
| (3) | Calculated pursuant to Rule 457(o) promulgated
under the Securities Act, as amended. |
| (4) | Each unit will be issued under a unit agreement
and will represent an interest in two or more other securities, which may or may not be separable
from one another. |
| (5) | On December 1, 2022, the registrant initially
filed a Registration Statement on Form S-3 (File No. 333-268635) (the "Original Registration
Statement"), which registered an aggregate principal amount of $100,000,000 of common
stock, debt securities, warrants, purchase contracts, units and subscription rights to be
offered by the registrant from time to time (together, the "Original Offering").
No securities were sold pursuant to the Original Offering, and the Original Offering has
been terminated. As a result, the registrant has $11,020 in unused filing fees associated
with the Original Offering. In accordance with Rule 457(p) under the Securities Act of 1933,
as amended, the registrant is using $11,020 of the unused filing fees to offset the
filing fee payable in connection with this filing. |
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